TikTok’s dance moves have gotten dirty—and Constitutionally dangerous. The app has now brought the U.S. into unchartered legal territory. Some of the U.S.’s most prominent tech companies are risking hundreds of billions of dollars in fines based on the word of a man who is not yet President of the United States to do something he cannot legally do. And they are doing so to host an app that Congress has deemed to be a national security threat—and reversing the intended outcome of a unanimous Supreme Court decision. But the landmark Supreme Court case was just the beginning. TikTok’s resurrection by Trump today marks the beginning of a broader legal and political battle over expanding presidential power.
On Friday, the Supreme Court unanimously upheld the Protecting Americans from Foreign Adversary Controlled Applications Act. PAFACAA effectively required TikTok to divest from ownership by a Chinese corporation, or to cease operations in the U.S. Importantly, the act does not outlaw individual users from accessing TikTok. It prohibits entities providing services to “distribute, maintain, or update” a foreign adversary- controlled application, which includes companies that host and distribute the app. The Supreme Court upheld the law over First Amendment challenges by TikTok and its users. In a speedy, pithy, and narrow decision, the Court held that the law furthered an important government interest in preventing a foreign adversary’s collection of “vast swaths of sensitive data.” The law was narrowly tailored to achieve its intent without substantially burdening more speech than necessary because it is not concerned with the content of users’ speech on TikTok, only foreign ownership of the app.
Today, Donald Trump—still a private citizen until noon tomorrow—posted on Truth Social that he would issue an Executive Order tomorrow to extend the time period before divestment is required in order to secure a deal. In response, Oracle and Akamai, TikTok’s primary U.S hosting services, reportedly agreed to reinstate TikTok. TikTok was up and running hours later. It welcomed its users back with a message thanking “President” Trump for his intervention.
Trump Can’t Legally Stop the Law Banning TikTok
The problem is, neither private citizen Trump nor President Trump can stop this law as it is written. PAFACAA gave TikTok 270 days to divest, which expired today, January 19. After that, any entity violating the law faces a $5,000 civil penalty per user. The law allows the President to grant a single extension of up to 90 days—an extension which was meant to be granted before the law came into force today. However, he can do so only on three conditions, none of which have been met. The President must certify to Congress that a party to divestiture has been identified, that significant progress is being made toward it, and that relevant legal agreements are in place to enable execution of the divestiture.
As a private citizen, Trump has no authority to allow companies to break U.S. law. And as president, he cannot issue an executive order that would supersede a statute. Oracle alone is risking $850 billion in fines. Akamai is risking an astronomical amount as well. As of this writing, Google and Apple have not yet reinstated TikTok on their respective app stores. If they did, they would risk $510 billion and $350 billion respectively.
Whether or not one agrees with PAFACAA, defying it is a gross abuse of Trump’s power and blatant flouting of the law by U.S. corporations. Congressional Democrats are likely to speak out against this abuse of power. Without Republican support, this will mean little in practice. Congress can pass another law to make clear that would have the same effect as PAFACAA, to make its intent clear. But it seems unlikely that a Republican-led Congress’s first act in a new Trump administration would be to defy him directly. Congress or its members could challenge an abuse of presidential power in court, but such lawsuits are rare and face considerable hurdles. Google and Apple would have standing to sue, but tech corporations have shown themselves unlikely to defy Trump’s wrath. All eyes are on shareholders, who can bravely stand up for their own rights and prevent presidential power from expanding too far.
More than TikTok Is At Stake
Until Friday, most analysts believed that the TikTok litigation would be a monumental decision pitting First Amendment sanctity against national security necessity. Now the TikTok litigation has much more at stake: the extent of presidential power itself. Legally, Trump does not have the power to supersede a statute—not via executive order when he is president, and certainly not as a private citizen by fiat or tweet. And corporations do not have the authority to flout U.S. law. Congress chose to force the sale of TikTok or halt its operations in order to protect the U.S. from manipulation by an authoritarian regime. Ironically, the saga of TikTok will now force Americans to choose whether to make our own leader more powerful and supreme.
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