Either Repeal or Enforce—but Ideally Repeal—the TikTok Ban
The ban is a bad law. But leaving it on the books and willfully ignoring it sets a potentially more dangerous precedent.
It's easy to forget that for more than five months, it has been the official position of the U.S. government that TikTok—the megapopular video sharing social media app owned by Chinese company ByteDance—must either be sold to another parent company or cease operating in the United States.
In the intervening period, the government has simply declined to enforce the law, allowing TikTok to continue operating under Chinese ownership. To be clear, the ban is a bad law. But leaving it on the books and willfully ignoring it sets a potentially more dangerous precedent about government power. If Congress is not going to repeal the law, then they should insist it be enforced.
In 2024, Congress passed the Protecting Americans From Foreign Adversary Controlled Applications Act, which prohibited operating or hosting "a foreign adversary controlled application (e.g., TikTok)" within the United States. The law required TikTok to find a buyer by January 19, 2025, or else shut down operations within the United States.
Ultimately, neither happened: While TikTok briefly went offline, President-elect Donald Trump said that after his inauguration on January 20, he would issue an executive order "to extend the period of time before the law's prohibitions take effect" and "confirm that there will be no liability for any company that helped keep TikTok from going dark."
Trump issued the executive order on his first day, "instructing the Attorney General not to take any action to enforce the Act for a period of 75 days from today." He has since issued two additional orders further extending the deadline, 75 days at a time. While he has suggested at various times since—most recently last week—that he had buyers lined up, a sale has yet to materialize.
But no president has the authority to simply postpone the enforcement of a law passed by Congress. The fact that Congress seems content to let Trump decline to enforce it does not obviate the law itself. And for that reason, if Congress will not repeal the law, then it should insist Trump enforce it.
Granted, the TikTok ban is a bad law: Never before in American history has the government singled out a private company to be banned within the U.S. or else divest itself to American ownership. The Supreme Court may have unanimously upheld it, but it's hard to conceive that such a ban would not be unconstitutional. (This is to say nothing of Trump's suggestion that in any potential sale, the U.S. government should somehow own half.)
But enforcing a bad law is at least preferable to setting the precedent that a president can simply ignore any laws he does not like. In fact, it seems the Trump administration is already citing the TikTok ban to do exactly that.
"Attorney General Pam Bondi told tech companies that they could lawfully violate a statute barring American companies from supporting TikTok based on a sweeping claim that President Trump has the constitutional power to set aside laws," Charlie Savage wrote in The New York Times.
Bondi's letters stem from tech companies' uncertainty over their potential legal liability for violating a law that remained in effect even as the president declined to enforce it. Trump may have pledged not to enforce the ban, but the law's statute of limitations lasts five years, meaning a future president—or Trump himself, in a sour mood—could choose to prosecute tech companies for not booting TikTok off their platforms.
Google and Apple did not reinstate TikTok in their respective app stores until weeks after Trump's executive order. Bondi's letters show what it took for them to come to that decision.
"The President previously determined that an abrupt shutdown of the TikTok platform would interfere with the execution of the President's constitutional duties to take care of the national security and foreign affairs of the United States," Bondi wrote in letters to officials at multiple companies, including Apple, Google, Amazon, Oracle, and Microsoft.
To be clear, law enforcement agencies make decisions all the time over how to deploy finite resources. For example, presidents enforce immigration law and can choose to focus on certain offenders; it's perfectly reasonable to prioritize violent criminals for deportation before otherwise law-abiding undocumented migrants, as even some Republicans support.
But it's something else entirely when Congress passes a law demanding one of two outcomes, the Supreme Court unanimously deems it constitutional, and the president simply decides he has no obligation to enforce it.
"Recent past presidents have been aggressive in exercising law enforcement discretion, but they haven't suspended the operation of a law entirely or immunized its violation prospectively," Jack Goldsmith, a Harvard Law School professor who served in President George W. Bush's administration, told The New York Times.
In fact, Bondi went much further than simply promising not to prosecute, saying the Department of Justice "is irrevocably relinquishing any claims the United States might have had" against each company during the periods of postponement. In effect, Bondi is forswearing the government's ability to enforce the law not only under her tenure, but under any future government as well, all while indicating the president can pick and choose which laws to enforce.
"Let's be clear: The executive branch is asserting that if a president determines that a duly enacted statute is inconvenient for the conduct of foreign affairs…he can simply set it aside," writes University of Minnesota Law School professor Alan Rozenshtein. "This interpretation effectively creates a foreign-affairs exception to the President's duty to 'take Care that the Laws be faithfully executed.'"
Indeed, if Trump's determination is allowed to stand, it sets exactly that precedent, that laws passed by Congress are merely a suggestion if a president for any reason doesn't feel like enforcing them.
"The battle over TikTok is a major rule-of-law crisis in its own right," Rozenshtein adds. "But its greatest significance may be how starkly it illustrates this administration's imperial conception of itself."
