TikTok is pursuing two urgent appeals to prevent a nationwide ban of its social media platform—one before the Supreme Court and the other directed at President-elect Donald Trump. The success of either approach remains uncertain.
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On Monday, the Chinese social media company filed an emergency request with the US Supreme Court seeking to block the enforcement of a federal law. Signed by President Biden in April, the law effectively bans the app on January 19th unless TikTok is sold to a US owner.
Coincidentally, TikTok CEO Shou Zi Chew reportedly met with Trump at his Mar-a-Lago club in Palm Beach, Florida on the same day. Neither Trump’s transition team nor TikTok responded to requests for comment on the meeting or their respective positions on the ban.
In September, Trump hinted on social media about “saving TikTok,” suggesting a reversal from his 2020 executive order aimed at banning the app. This week, he expressed fondness for TikTok and stated his administration was “taking a look at it.”
Trump’s Potential Actions and Limitations
If the law remains unchanged and unenforced, it will take effect on January 19th, a day before Trump’s inauguration. However, even after assuming office, Trump’s authority to circumvent the law may be limited.
One option for Trump is to instruct the Justice Department to avoid prosecuting alleged violations. However, app store providers like Apple and Google could still face civil penalties for hosting TikTok. The statute explicitly prohibits individuals and businesses from distributing or hosting the app.
Legal experts suggest Trump could urge Congress to repeal or postpone the law. He could also leverage the provision granting presidential authority to confirm TikTok’s divestiture.
Cornell Law professor James Grimmelmann highlights the President’s power to certify divestiture, regardless of its actual completion. While this wouldn’t prevent Congressional revisions, it might pressure TikTok into a compromise. However, a complete Congressional repeal of the law is deemed highly improbable.
Alternatively, a broad interpretation of divestment by Trump could frustrate lawmakers, though they lack legal recourse to sue. Competing social media companies or app providers might have standing to challenge such an interpretation, potentially alleging unfair competitive practices.
The Supreme Court’s Role and Potential Outcomes
Delaying enforcement hinges on the Biden administration and the Supreme Court. An appeals court allowed a 90-day presidential extension contingent on ByteDance, TikTok’s parent company, demonstrating progress towards securing a buyer. ByteDance has refused to sell.
TikTok’s request for a stay on the ban will likely be considered on the Supreme Court’s “shadow docket,” known for its lack of transparency and expedited decision-making process in urgent cases. The court may decline the request without explanation.
Alternatively, the court could agree to review the lower court’s ruling, likely granting a temporary stay on enforcement. A decision would then be expected before the term ends in mid-2025.
The case reached the Supreme Court after the DC Circuit Court of Appeals declined to hear TikTok’s similar request. The appeals court argued the law protects free speech by limiting foreign data collection. TikTok contends the law targets its content and editorial choices, violating its constitutional speech protections.
