Trump Urges Stay of S. Ct. Proceedings in TikTok Case, Delay of Statutory Effective Date

From Trump's just-filed friend-of-the-court brief in the TikTok divestment case:

Introduction and Interest of Amicus Curiae …

Amicus curiae President Donald J. Trump ("President Trump") is the 45th and soon to be the 47th President of the United States of America. On January 20, 2025, President Trump will assume responsibility for the United States' national security, foreign policy, and other vital executive functions. This case presents an unprecedented, novel, and difficult tension between free-speech rights on one side, and foreign policy and national-security concerns on the other. As the incoming Chief Executive, President Trump has a particularly powerful interest in and responsibility for those national-security and foreign-policy questions, and he is the right constitutional actor to resolve the dispute through political means.

President Trump also has a unique interest in the First Amendment issues raised in this case. Through his historic victory on November 5, 2024, President Trump received a powerful electoral mandate from American voters to protect the free-speech rights of all Americans—including the 170 million Americans who use TikTok. President Trump is uniquely situated to vindicate these interests, because "the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation."

Moreover, President Trump is one of the most powerful, prolific, and influential users of social media in history. Consistent with his commanding presence in this area, President Trump currently has 14.7 million followers on TikTok with whom he actively communicates, allowing him to evaluate TikTok's importance as a unique medium for freedom of expression, including core political speech. Indeed, President Trump and his rival both used TikTok to connect with voters during the recent Presidential election campaign, with President Trump doing so much more effectively. As this Court instructs, the First Amendment's "constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office."

Further, President Trump is the founder of another resoundingly successful social-media platform, Truth Social. This gives him an in-depth perspective on the extraordinary government power attempted to be exercised in this case—the power of the federal government to effectively shut down a social-media platform favored by tens of millions of Americans, based in large part on concerns about disfavored content on that platform. President Trump is keenly aware of the historic dangers presented by such a precedent. For example, shortly after the Act was passed, Brazil banned the social-media platform X (formerly known as Twitter) for more than a month, based in large part on that government's disfavor of political speech on X. See, e.g., Brazil's Supreme Court Lifts Ban on Social Media Site X, CBS NEWS (Oct. 8, 2024).

In light of these interests—including, most importantly, his overarching responsibility for the United States' national security and foreign policy— President Trump opposes banning TikTok in the United States at this juncture, and seeks the ability to resolve the issues at hand through political means once he takes office. On September 4, 2024, President Trump posted on Truth Social, "FOR ALL THOSE THAT WANT TO SAVE TIK TOK IN AMERICA, VOTE TRUMP!"

Furthermore, President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government—concerns which President Trump himself has acknowledged. See, e.g., Executive Order No. 13942, Addressing the Threat Posed by TikTok, 85 Fed. Reg. 48637, 48637 (Aug. 6, 2020); Regarding the Acquisition of Musical.ly by ByteDance Ltd., 85 Fed. Reg. 51297, 51297 (Aug. 14, 2020). Indeed, President Trump's first Term was highlighted by a series of policy triumphs achieved through historic deals, and he has a great prospect of success in this latest national security and foreign policy endeavor.

The 270-day deadline imposed by the Act expires on January 19, 2025—one day before President Trump will assume Office as the 47th President of the United States. This unfortunate timing interferes with President Trump's ability to manage the United States' foreign policy and to pursue a resolution to both protect national security and save a social-media platform that provides a popular vehicle for 170 million Americans to exercise their core First Amendment rights. The Act imposes the timing constraint, moreover, without specifying any compelling government interest in that particular deadline. In fact, the Act itself contemplates a 90-day extension to the deadline under certain specified circumstances. Pet.App.97a, § 2(a)(3)(A)-(C).

President Trump, therefore, has a compelling interest as the incoming embodiment of the Executive Branch in seeing the statutory deadline stayed to allow his incoming Administration the opportunity to seek a negotiated resolution of these questions. If successful, such a resolution would obviate the need for this Court to decide the historically challenging First Amendment question presented here on the current, highly expedited basis.

Summary of Argument

President Trump takes no position on the merits of the dispute. Instead, he urges the Court to stay the statute's effective date to allow his incoming Administration to pursue a negotiated resolution that could prevent a nationwide shutdown of TikTok, thus preserving the First Amendment rights of tens of millions of Americans, while also addressing the government's national security concerns. If achieved, such a resolution would obviate the need for this Court to decide extremely difficult questions on the current, highly expedited schedule.

There is ample justification for the Court to stay the January 19 deadline—by which divestment for ByteDance must occur, or else TikTok will face an effective shut-down in the United States—while it considers the merits of the case. First, this Court has aptly cautioned against deciding "unprecedented" and "very significant constitutional questions" on a "highly expedited basis." Due to the Act's deadline for divestment and the timing of the D.C. Circuit's decision, this Court now faces the prospect of deciding extremely difficult questions on exactly such a "highly expedited basis." Staying this deadline would provide breathing space for the Court to consider the questions on a more measured schedule, and it would provide President Trump's incoming Administration an opportunity to pursue a negotiated resolution of the conflict. Indeed, the Court recently pursued a similar course in Zubik v. Burwell, vacating lower-court decisions and pausing the enforcement of HHS's contraceptive mandate against religious organizations to "allow the parties sufficient time to resolve any outstanding issues between them."

Second, three features of the Act raise concerns about possible legislative encroachment on prerogatives of the Executive Branch under Article II. First, the Act dictates that the President must make a particular national-security determination as to TikTok alone, while granting the President a greater "degree of discretion and freedom from statutory restriction" as to all other social-media platforms. United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936). Second, the Act mandates that the President must exercise his power over foreign affairs "through an interagency process" commanded by Congress, instead of exercising his sole discretion over the deliberative processes of the Executive Branch.

Third, the Act—due to its signing date—now imposes a deadline for divestment that falls one day before the incoming Administration takes power. Especially when viewed in combination, these unique features of the Act raise significant concerns about possible legislative encroachment upon the President's prerogative to manage the Nation's geopolitical, strategic relationships overall, and with one of our most significant counterparts, China, specifically. This is an area where the Nation must "speak … with one voice," and "[t]hat voice must be the President's." Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 14 (2015) (citation omitted).

Third, the First Amendment implications of the federal government's effective shuttering of a social- media platform used by 170 million Americans are sweeping and troubling. There are valid concerns that the Act may set a dangerous global precedent by exercising the extraordinary power to shut down an entire social-media platform based, in large part, on concerns about disfavored speech on that platform. Perhaps not coincidentally, soon after the Act was passed, another major Western democracy—Brazil— shut down another entire social-media platform, X (formerly known as Twitter), for more than a month, apparently based on that government's desire to suppress disfavored political speech.

Moreover, despite the Act's enormous impact on the speech of 170 million TikTok users, the D.C. Circuit's opinion grants only cursory consideration to the free-speech interests of Americans, while granting decisive weight and near-plenary deference to the views of national-security officials. Yet the history of the past several years, and beyond, includes troubling, well- documented abuses by such federal officials in seeking the social-media censorship of ordinary Americans.

In light of the novelty and difficulty of this case, the Court should consider staying the statutory deadline to grant more breathing space to address these issues. The Act itself contemplates the possibility of a 90-day extension, indicating that the 270-day deadline lacks talismanic significance. Such a stay would vitally grant President Trump the opportunity to pursue a political resolution that could obviate the Court's need to decide these constitutionally significant questions….

Conclusion

President Trump takes no position on the underlying merits of this dispute. Instead, he respectfully requests that the Court consider staying the Act's deadline for divestment of January 19, 2025, while it considers the merits of this case, thus permitting President Trump's incoming Administration the opportunity to pursue a political resolution of the questions at issue in the case.

The brief was written by John Sauer, whom Trump has tapped as the incoming nominee for Solicitor General.