Stop Ignoring the Law, Mr. President
Trump must fulfill his oath of office and enforce the TikTok ban.
On April 24, 2024, former President Biden signed a foreign aid package into law that included the Protecting Americans from Foreign Adversaries Act, a piece of legislation that would ban the popular social media app, TikTok, from use in the United States. The law gave TikTok 270 days to divest itself from its Chinese-based parent company, ByteDance, due to national security concerns that the Chinese government could access the private information of the nearly 170 million Americans who use the platform.
Instead of seeking divesture with ByteDance, TikTok challenged the constitutionality of the law in court, arguing that the ban violated their and their users’ First Amendment right to free expression. Their litigation eventually reached the Supreme Court, and in TikTok Inc. v. Garland, the Court upheld the law, finding that the “Act does not regulate the creator petitioners [on TikTok] at all” and satisfied the U.S. Government’s “important and well grounded interest in preventing China from collecting the personal data of tens of millions of U.S. TikTok users.”
As Justice Gorsuch wrote in concurrence, “Speaking with and in favor of a foreign adversary is one thing. Allowing a foreign adversary to spy on Americans is another.”
With the law being upheld, TikTok hit its deadline on January 19 and went dark, but political moods were a-changing.
Donald Trump, who once signed an eventually overturned executive order seeking to ban the social media heavyweight, had recently joined TikTok and received a significant following on the app heading into the 2024 election. Then on January 19, Trump posted on TruthSocial that he intended to sign an executive order giving TikTok an extralegal extension to divest from ByteDance. He also said that he “would like the United States to have a 50% ownership position in a joint venture” between the “U.S. and whichever purchase we so choose.”
(Giving the “United States”—the federal government presumingly, though he could have been referring to private individuals—a 50% ownership stake with a social media company would be unprecedented and a disturbing growth of the size of the federal government’s influence into everyday life. But for now, let us dwell on the legal ramifications of Trump’s actions as president.)
Meanwhile, former President Biden refused to enforce the very law he put his signature on. Biden had announced in advance that he would not be making any effort to enforce the law. Still, TikTok decided to play it safe and go dark on the 19th. But it wasn’t down for long at all.
Upon assuming office, President Trump signed an executive order extending the deadline for TikTok by 75 days. The Protecting Americans from Foreign Adversaries Act does contain a provision for the President to issue a one-time extension of up to 90 days, but only if
the President certifies to Congress that—
(A) a path to executing a qualified divestiture has been identified with respect to such application;
(B) evidence of significant progress toward executing such qualified divestiture has been produced with respect to such application; and
(C) there are in place the relevant binding legal agreements to enable execution of such qualified divestiture during the period of such extension.
In other words, if a real and promising move is actually made toward TikTok severing itself from ByteDance, the President may issue an extension of the deadline to give the players the time they need to finish their deal. But that hasn’t happened. Indeed, Trump’s executive order didn’t even attempt to claim that any such progress had been made.
The only rationale the executive order used was that the “unfortunate timing” of the TikTok ban interfered with “my [Trump’s] ability to assess the national security and foreign policy implications of the Act’s prohibitions before they take effect” and his position to “negotiate”—a typical desire of Mr. Art of the Deal— “a resolution to avoid an abrupt shutdown of the TikTok platform.” Accordingly, the executive order directs the Attorney General to take no action to enforce the law until the end of the 75-day extension.
When asked why he went from pushing the ban of TikTok in 2020 to rescuing the app from the dictates of the law, Trump answered, “Because I got to use it.”
As someone who campaigned to “restore law and order” and just took an oath to “faithfully execute the Office of President of the United States,” Trump is starting his last term in a rather lawless manner. And to be clear: There is no need for whataboutism. You can point to the lawlessness of Joe Biden (who refused to enforce the TikTok ban first) or whoever fits your fancy, but you cannot sugarcoat Trump’s dereliction of duty here. At the very best, you can say that Trump’s extension is legally dubious.
Notably, even many of Trump’s biggest defenders are less than enthusiastic about the President’s action on TikTok. Sure, far-right pundits like Charlie Kirk have played followmthe leader with Trump on the social media app, but you’d be pressed to find any Trump-friendly pundit who’s taken time to write about the matter and gloat over this move. Far-right sites like The Federalist and The National Pulse have published pieces pointing out the security risks TikTok still poses while largely refraining from offering any serious rebuke of Trump directly (the most Helen Raleigh at The Federalist could say was that Trump shouldn’t “waste his political capital” with TikTok). They also haven’t spent much time dwelling on the illegality of declared extension. If the majority of Trump’s supporters in the media don’t like the idea of rescuing TikTok or can’t provide any substantial legal defense of his executive order, then that should tell you something.
Trump’s salvation of TikTok has come about through a blatant disregard for the law. Currently, TikTok is unavailable on the Google and Apple app stores, but it is still accessible to American users if they already had the app downloaded. Whether you believe TikTok should be banned or not (as Republican Senator Rand Paul and Democratic Congressman Ro Khanna do), the law is clear. TikTok has no legal authority to be up and running in the United States.
As long as President Trump refuses to enforce the TikTok ban, he is turning his back on the rule of law and committing dereliction of duty as the nation’s chief executive of our laws. An established law is not rendered valid or invalid upon the President’s whim. America is not governed by monarchs. Trump must reverse course on TikTok, and get in the business of upholding the laws of the United States.
Stop ignoring the law Mr. President and start governing within your constitutionally prescribed limits.