Biden Will Not Enforce TikTok Ban For Final 36 Hours Of His Presidency

Anyone remember the Take Care Clause? And way to undermine your SG!

The TikTok ban goes into effect at 12:01 AM on January 19, 2025. President Biden has the power to grant an extension if certain conditions are met, though it doesn't seem like that will happen. Instead, President Biden has simply announced that he will not enforce the law for the final 36 hours of this presidency. Or more precisely, the Biden Administration will not impose any fines on companies that allow TikTok to operate. Instead, they will let Trump deal with it.

"Given the timing of when it goes into effect over a holiday weekend a day before inauguration, it will be up to the next administration to implement," a White House official said.

What a mess. For starters, what about the Take Care Clause? The President has a duty to take care that the laws are faithfully executed. The Solicitor General has vigorously argued that the law is constitutional, and essential to national security. Yet, Biden has simply told his administration to not enforce the law, full stop. What plausible justification is there for this decision? I eagerly await the return of the Take Care Blog.

Trump is not President yet. The buck stops with Biden until January 20. But President Biden's capitulation on the issue is a recognition that Trump is really in charge. Again, elites mocked the Trump amicus brief, but it accurately described the state of play.

This video is an example. A reporter asked Biden who takes credit for the ceasefire in the Gaza Strip, him or Trump. Biden could only muster, "Is that a joke?"

More pressingly, this decision undermines the Solicitor General's argument to the Supreme Court. The government defended the ban as a necessary means to protect Americans from a foreign adversary. But when push comes to shove, the President simply doesn't care. China can keep on doing whatever it is they are doing. Could it be that the government's arguments in defense of the TikTok ban are, as they often are, exaggerated?

Where does all this news leave the Court? Do the Justices really want to write a landmark First Amendment decision in a few days for a law that the President won't even enforce? I am skeptical. I think an administrative injunction is looking like a pretty good option now. I suggested this option before argument, and Justice Alito raised the possibility during argument. The Court can just put the law on hold and let Trump make a deal.

Comments

[F.D. Wolf]

I guess Biden is afraid of the oligarchs and "tech-industrial complex" he warned us yesterday were taking over the country.

[SimonP]

You're being an idiot, Josh.

Biden isn't "enforcing" the ban within the last 36 hours he's president because carrying through any attempted enforcement action will fall to Trump, who has himself already indicated that he does not plan on enforcing the law. (Speaking of the "take care" clause!)

You cheapen this blog, Josh.

[Riva]

BS. He never said he wouldn’t enforce the law. In fact, he promised to restore the rule of law. The leftist days of lies and censorship are over. Didn’t you get the memo last November?

[Longtobefree]

"President Biden has simply announced that he will not enforce the law for the final 36 hours of this presidency."

Can we gat an impeachment done in 35 hours?

[Randal]

For starters, what about the Take Care Clause? The President has a duty to take care that the laws are faithfully executed.

Hahaha how can you live with yourself, Josh? Trump has signalled that he's likely to implement the exact same non-enforcement policy.

I can't wait until five days from now you're telling us how great it is that Trump decided that it's "necessary and proper" not to "take care that the laws are fully executed" in the case of TikTok.

This is going to be a fun four years!

[Stupid Government Tricks]

I see deeper. I see Biden resigning in the morning and leaving it to Kamala. His final poke in the eye to Obama. Like someone else said, he's acting like a pissed-off renter on his moving out day.

[Brett Bellmore]

Only thing is, I hear he doesn't much like Harris, either.

Though I guess he could spitefully resign an hour before midnight on January 19th, without notifying Harris, so that the Democrats get to check off the "First woman President!" box without Harris actually getting a chance to put the keys in the ignition.

[Drewski]

"I hear he doesn't much like Harris, either."

Well, yes, but the things you listen to are made-up stories on shady websites. You can hear a lot of things that way.

[Brett Bellmore]

Says a guy who probably thinks Trump lunged for the steering wheel, and asked Raffensperger to find votes for him. I think you're over-estimating how unshady mainstream websites are.

[Stupid Government Tricks]

Are you lefties always such sourpuss party poopers? I made a joke, Brett made a joke, and you come back with personal insults.

[David Nieporent]

The last refuge of the scoundrel is, when caught in a lie, to say, "Hey, I was only joking." It's a favorite tack of Trump and his supporters. But you weren't, and Brett wasn't. (To clarify, you may have been joking¹ about Biden resigning; you were not joking about this imaginary feud with Obama.)
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¹For a loose definition of the word that doesn't involve humor.

[Stupid Government Tricks]

Another scold. Of course you can't see humor in anything.

Tell you what, Karen. Post a joke, here. Show you are capable. Show what passes for humor in lefty la la land.

[No One Of Consequence]

I can see it now:

I hereby resign the office of President of the United States, effective January 20, 2025, at 11:45 a.m., EST.

Enjoy your 15 minutes, President Harris.

Love, Joe

[A Japanese Student]

The executive branch must follow the law. However, laws generally authorize, not require, enforcement. Prosecutorial discretion is obviously constitutional.

PAFACAA does note that AG "shall pursue enforcement" - however, it is preceded by this clause: "[AG] shall conduct investigations related to potential violations of subsection (a) or (b), and, if such an investigation results in a determination that a violation has occurred...".

It makes sense to let the incoming AG do the investigation rather than finish it incomplete (on Sunday, or the Inauguration Day).

[Doug Heffernan]

That sounds reasonable. Blackman, as usual, does not.

Blackman is just making hay here so that when Trump does much worse, Blackman can point to this piece and say that Biden did the same thing. Of course, it won't be anything like the same thing.

[David Nieporent]

But wait. Prosecutorial discretion is not the same thing as telling a private citizen, "You don't have to obey the law; if you violate it, I won't do anything about it."

[No One Of Consequence]

What's it called when the DOJ tells private citizens that it's not going to enforce federal marijuana laws (in states where it's legal under state law) because somebody decided it's not a good use of prosecutorial resources?

Hint: The DOJ referred to it as "a guide to the exercise of investigative and prosecutorial discretion."
https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf

[Kazinski]

Very few laws are rigorously enforced within 36 hours of when they become effective, but were I one of the offending companies I would still beware, as I understand it they are still putting themselves in jeopardy.

Apple and/or Google will probably remove it from their app stores unless they get explicit assurances from the incoming Trump administration, the big question is will Oracle still let it run on their cloud?

[Thomas L. Knapp]

"The Court can just put the law on hold and let Trump make a deal."

Or the Court can simply rule that the law is unconstitutional -- which it clearly is -- and bring this farce to an end.

Unfortunately, neither wing of the Court seems to find the Constitution especially fashionable these days.

[No One Of Consequence]

Or the Court could rule that the law doesn't violate the First Amendment, which is what it did this morning. Per curiam. Sotomayor concurring in part and concurring in judgment. No dissents.

[Brett Bellmore]

I remember the take care blog.

Begun as Trump took office, half their complaints were about Trump actually enforcing laws they didn't like, and they shut it down when he left office. Because, obviously, the duty to take care that the law is faithfully executed only applies to one President.

Think they'll fire that sucker up again, now that Trump is returning to office?

[KenveeB]

I'm not a fan of Biden, but the law takes effect on a Friday of a three-day weekend. How much enforcing do you expect to happen??

[No One Of Consequence]

How's that administrative stay working out for you?
https://www.supremecourt.gov/opinions/24pdf/24-656_ca7d.pdf

[ReaderY]

You’re complaining Biden is just like Trump over THIS?

Aren’t you embarassed?

[Retired Lawyer]

If I correctly understand Professor Blackman’s positions, he argues that the Supreme Court has discretion (I gather inherent discretion) to issue a judicial "administrative stay: of the Tik Tok ban, but the President risks infringing the “Take Care” clause if she or he issues an administrative “administrative stay.” That may be correct, but I’d like to see some analysis.