Executive Order Apparently Promises No Enforcement of TikTok Ban for 75 Days

An excerpt from the order, which appears not to be the sort of 90-day extension contemplated by the Tiktok divestiture statute itself, but rather appears to be the exercise of the Executive Branch's enforcement discretion:

I have the unique constitutional responsibility for the national security of the United States, the conduct of foreign policy, and other vital executive functions. To fulfill those responsibilities, I intend to consult with my advisors, including the heads of relevant departments and agencies on the national security concerns posed by TikTok, and to pursue a resolution that protects national security while saving a platform used by 170 million Americans. My Administration must also review sensitive intelligence related to those concerns and evaluate the sufficiency of mitigation measures TikTok has taken to date.

The unfortunate timing of section 2(a) of the Act — one day before I took office as the 47th President of the United States — interferes with my ability to assess the national security and foreign policy implications of the Act's prohibitions before they take effect. This timing also interferes with my ability to negotiate a resolution to avoid an abrupt shutdown of the TikTok platform while addressing national security concerns.

Accordingly, I am instructing the Attorney General not to take any action to enforce the Act for a period of 75 days from today to allow my Administration an opportunity to determine the appropriate course forward in an orderly way that protects national security while avoiding an abrupt shutdown of a communications platform used by millions of Americans…. In light of this direction, even after the expiration of the above-specified period, the Department of Justice shall not take any action to enforce the Act or impose any penalties against any entity for any conduct that occurred during the above-specified period or any period prior to the issuance of this order, including the period of time from January 19, 2025, to the signing of this order….

I further order the Attorney General to issue a letter to each provider stating that there has been no violation of the statute and that there is no liability for any conduct that occurred during the above-specified period, as well as for any conduct from the effective date of the Act until the issuance of this Executive Order….

Because of the national security interests at stake and because section 2(d) of the Act vests authority for investigations and enforcement of the Act only in the Attorney General, attempted enforcement by the States or private parties represents an encroachment on the powers of the Executive. The Attorney General shall exercise all available authority to preserve and defend the Executive's exclusive authority to enforce the Act….

Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals….

This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

I can't speak to whether there are any loopholes here, or other matters that might cause unintended consequences, but I thought I'd pass this along.

Comments

[SimonP]

Hey Eugene! Maybe, with all the time you're not using to write about the Texas PornHub case, you could spend some time reading the law that Trump is choosing to ignore here!

[Life of Brian]

Ignoring the law? Pish. The big brains around here have patiently instructed us for many moons that the Executive branch has full and unfettered discretion to determine enforcement priorities.

Just another chicken coming home to roost.

[SimonP]

Do you have an actual argument to make, LoB?

This EO doesn't just disregard the law's clear mandate to investigate violations of the law. It purports to say that no violation has occurred, and that no one can say otherwise. It would be like DACA declaring that anyone who qualifies for the program is declared to be a naturalized citizen of the U.S.

[JoeFromtheBronx]

He's going to leave it to Josh Blackman, who was so concerned about Biden allegedly not enforcing it for around 24 hours.

[SimonP]

Josh is no doubt working on commentary for each of the EOs, as they get rolled out. I'm sure we all greatly anticipate what he has to say about them.

[emilyhere]

Google paid $195 a hour on the internet..my close relative has been without labor for nine months and the earlier month her compensation check was $23660 by working at home for 10 hours a day..

Here→→ https://da.gd/income666

[David Nieporent]

Biden allegedly not enforcing it for around 24 hours.

36 hours, technically! It took effect at 12:01 a.m. on the 19th, and Biden flagrantly refused to enforce it all the way up to 11:59 a.m. on the 20th.

[Life of Brian]

Do you have an actual argument to make, LoB?

I think it was clear enough, actually: this is not "ignoring the law" at all, but opting not to enforce it for a period of time. Maybe it would have been clearer if he had attached cute acronym to it -- TACA, say.

It purports to say that no violation has occurred, and that no one can say otherwise.

Seems to me you're trying to generalize a snippet from the the hold-harmless letters to the providers into something broader that would render this crystal-clear language superfluous: "I am instructing the Attorney General not to take any action to enforce the Act."

[SimonP]

I think it was clear enough, actually...

The fact that you're too lazy to spell things out carefully - no doubt accustomed to your audience not needing to be convinced - does not mean that your prior comment was "clear."

The law includes mandatory and discretionary elements. It does, indeed, indicate only that the AG may seek penalties or injunctive relief for a violation of the law; that presumably leaves some room for prosecutorial discretion. But the law is also unambiguous insofar as it directs the AG to take certain actions if a violation of the law occurs. It does not authorize the President not to enforce the law or waive liability for any period of time in which the law is violated.

As I said, I thought clearly by invoking DACA myself - the EO goes further than just declining to enforce the law if certain conditions are satisfied. It is trying to declare that no violation of the law is occurring. But the ban is in place and in effect.

[Stupid Government Tricks]

Your reading comprehension problems are yours alone, not LoB's.

[SimonP]

Your lack of any substantive response is as unpersuasive as your lazy insults.

[Life of Brian]

It is trying to declare that no violation of the law is occurring.

You're still hung up on this word snippet from a sentence describing a letter intended to give assurance to third-party providers of services required for TikTok to continue operations that they're not going to be held liable for doing that. Who knows what language the actual letters ultimately will use, but the intent here seems clear enough for those that aren't looking for something to fuss about.

But the law is also unambiguous insofar as it directs the AG to take certain actions if a violation of the law occurs.

Hard to address something that provides no quotes or even cites for the supposed unambiguity. What "certain actions" are these, and what time frame is proscribed? Oh, and what happens if the AG is just too damn busy dealing with other more pressing issues -- floods of illegal immigrants, say?

[David Nieporent]

You're still hung up on this word snippet from a sentence

Law is words.

a letter intended to give assurance to third-party providers of services required for TikTok to continue operations that they're not going to be held liable for doing that.

It could've said, "The AG is directed to tell the 3pps that you will not enforce this law for 75 days." That is not what it said. It expressly said "stating that there has been no violation of the statute and that there is no liability for any conduct that occurred during the above-specified period, as well as for any conduct from the effective date of the Act until the issuance of this Executive Order…." Those are both lies, and far outside the president's authority. (Note that the statute of limitations for bringing a claim against those 3pps extends longer than Trump's presidency, so he cannot as a practical matter grant such assurances.)

Hard to address something that provides no quotes or even cites for the supposed unambiguity. What "certain actions" are these,

If you don't even know what the statute says, why the hell are you purporting to argue about it? Have you thought of learning about a topic before discussing it?

[SimonP]

As a point of order, the Senate incorporated the provisions into a separate bill, which is the version that became law. I haven't compared HR 815 (i.e., the actually-enacted version) against HR 7521, so I don't know whether the Senate amended the language when it did that.

People following your link may get the impression that the bill never passed.

[David Nieporent]

People following your link may get the impression that the bill never passed.

I don't think anyone is going to be confused about that point! But fair enough. This is the actually enacted one.

[Life of Brian]

It could've said, "The AG is directed to tell the 3pps that you will not enforce this law for 75 days."

Of course not, if they actually wanted the letters to be effective. Since the point of the letters is to actually assure the third-party providers that they would incur no liability for continuing to provide services during the quiet period, simply promising to delay enforcement would give them no comfort whatsoever that they wouldn't be nailed up on day 76 for something they did on day 2.

If you don't even know what the statute says

Nice link to a bunch of text. If it's so amazingly clear which exact part(s) of it Simon was referring to, you of course could have just pasted those in far less time than it took you to type your snark.

[SimonP]

Man, you are really dead set against thinking for yourself, aren't you?

[David Nieporent]

Of course not, if they actually wanted the letters to be effective. Since the point of the letters is to actually assure the third-party providers that they would incur no liability for continuing to provide services during the quiet period, simply promising to delay enforcement would give them no comfort whatsoever that they wouldn't be nailed up on day 76 for something they did on day 2.

"He had to lie to them because if he had told the the truth it wouldn't have worked."

But do you honestly think companies like Apple and Google don't have their own lawyers, that can tell them that the letter as written is a lie and that it therefore does not actually "assure" them of any such thing?

[Life of Brian]

Unclear why you singled out Apple and Google, but apparently the companies that actually matter got the message just fine.

[David Nieporent]

Unclear why you singled out Apple and Google,

Because one of the two prohibition provisions of the law directly applies to and targets them. Have you still not bothered to read the law?

[Life of Brian]

Because one of the two prohibition provisions of the law directly applies to and targets them.

And the other prohibition directly applies to and targets the other entities whose services are required for TikTok to be freely accessible in the U.S., as it currently is, including through both Apple and Google devices.

So, again: why the fixation on Apple and Google?

[SimonP]

You're still hung up on this word snippet...

Yes, I am "hung up" on the words used in the executive order. It's a very lawyerly thing to do.

Hard to address something that provides no quotes or even cites for the supposed unambiguity.

"Source?" may be a valid response to someone making a factual claim that is not commonly accepted as true. But when it comes to the text of a publicly-available piece of legislation, it amounts to simple laziness on your part. Suffice it to say that I am not your tutor, and I'm not that interested in engaging with someone evincing this level of helplessness. If you can't be bothered to track down and read the law for yourself - as I have done - then why in the world would I (or anyone else) think your opinion about it is worth paying attention to?

[Life of Brian]

If you can't be bothered to track down and read the law for yourself - as I have done - then why in the world would I (or anyone else) think your opinion about it is worth paying attention to?

At the risk of stating the obvious, because you're the one making the conclusory argument about what the law supposedly says. If you've ever written a brief that makes a bare argument like that with no citations and then argued that sufficed to burden the other party to read through the entire text, guess what you might have been referring to, and argue against that, please do forward it.

Since you're the one appealing to "lawyerly things to do" and all.

[SimonP]

I'm not writing a brief, and you're not entitled to the deference one might show a judge.

You'd prefer to play internet games over "burdens of proof," again on something you can easily review and confirm for yourself. It's as simple as noticing where the statute says that the Attorney General "shall" do something, and where it says that the Attorney General "may" do something. It seems you will respond to me all day, picking this fight and declaring victory over a "burden" not having been carried, all the while carefully protecting your ignorance from the light of actual truth.

At this point, I am intentionally not providing any kind of helpful link or block citation, because I refuse to do the work for such a lazy interlocutor as yourself, who seems more interested in winning internet fights than engaging in any kind of substantive discussion. You're free to go and prove me wrong, and then we can actually discuss whether the law authorizes the president to wave away the penalties that the law imposes. Until then you're just a clown.

[David Nieporent]

Co-sign. I would caveat this by saying that if LoB had said, "I've read it and don't see that anywhere," that would be a different story, even if it should be obvious. But not only is he refusing to do so much as google, but even though I gave him the specific link he is refusing to look at it.

[Life of Brian]

It's as simple as noticing where the statute says that the Attorney General "shall" do something, and where it says that the Attorney General "may" do something.

Well, no it isn't. Since it says both things, what you would need to do in order to actually support your argument is explain why you feel the "shall" language precludes the EO in a way not contemplated by the "may" language.

You know, that thing lawyers do when they actually have substantive arguments rather than feelsies-badsies.

[Martinned2]

And then the big brains in the comments have patiently instructed us that prosecutorial discretion was an outrage.

[santamonica811]

I know I'm arguing about semantics here, but; can a president really "order" an Attorney General to do/not do something? I don't think the language matters in a practical sense . . . "I order you to do X" is maybe not terribly different in terms of results from, "I officially am asking you to do X, and I'm gonna fire you if you don't do X." But if we are looking for an indication that the Dept of Justice will be independent from the White House; it's not a great first impression.**

(**Yes, I know what we all expect in terms of actual fealty to Trump from the AG on down. But I'm more interested in how it impacts the public perception, for the 60% of the country that is non-MAGA.)

[Michael P]

The AG is appointed by, and serves at the pleasure of, the President, as part of the executive branch. Of course the President may give the AG orders, and the AG may refuse them. Remember Elliot Richardson and William Ruckelshaus (the "Saturday Night Massacre").

Joe Biden's protestations of Merrick Garland's independence were him paying homage to virtue.

[Eugene Volokh]

1. These are called Executive Orders, so "order" is the natural verb, I think.

2. More broadly, the Attorney General derives his enforcement authority from the President. ("The executive Power shall be vested in a President of the United States of America.") Whatever one might think of whether some executive officials might be independent of the President, the AG in his normal law-enforcement capacity isn't. I think it thus makes sense that the President would indeed order his subordinates to act in a particular way.

3. And for this particular EO to work, it has to be a binding order. If it's just a request for the AG, then it can't offer any assurance of nonprosecution to the regulated entities until the AG agrees to go along; and presumably that will only last until the next AG takes over. (I take it that there's currently an Acting AG, until AG-nominee Pam Bondi is confirmed.)

4. As to "impressions" and "public perception," I can't really say with confidence. But I think that even people who support some independence by the AG -- e.g., in refusing to follow illegal orders, or refusing to go after the President's opponents just because they are opponents -- should recognize that as to lawful major policy decisions, the President should be free to order the AG to implement the President's lawful policies.

[Martinned2]

Doesn't the Attorney General derive his enforcement authority from 28 USC 516 and related statutes, read together with the Tiktok law itself?

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section516&num=0&edition=prelim

[Drewski]

Yeah, he can do it. Consider a pardon: The President can order the AG to declare that someone did not violate a statute and is innocent and therefore pardoned. I think he can do this as an act of prosecutorial discretion as well. The fact that it isn't true is not something the Constitution is concerned with.

Now, as to waiving all liability in advance for any acts during a 75-day period, I question whether that's within Trump's powers. I'm legitimately not sure to what extent, if any, a President has binding authority to waive future liability. Probably none - I don't imagine that a President can bind a hypothetical future President by EO.

[The Margrave of Azilia]

I'm not sure any of this TikTok order is legal, but perhaps Trump left off some relevant legal authority empowering him to act as he did.

[David Nieporent]

It's worse than "a 75 day period," btw. The order purports to retroactively immunize these companies for actions taken in the 36 hours after the law took effect and before Trump was even president.

[Randal]

Oh no, will Josh Blackman's brain be physically capable of doing the cartwheels necessary to accomodate this action by his hero Trump? Just last week he was excoriating Biden for declining to "take care that the laws be faithfully executed" for a mere 36 hours, let alone 75 days!

The answer, obviously, is yes. Partisan cartwheels are about the only thing his brain is good for.

[Area Man]

The president “shall take Care that the Laws be faithfully executed….” He only has discretion not to enforce the law if such discretion is built into the law by Congress (e.g., the law says he “may” do or refrain from doing some action). To claim a general discretion to not enforce the law turns the Take Care Clause on its head, and effectively makes the executive a co-legislature.

[David Nieporent]

Congress legislates against the established legal background; prosecutorial discretion is baked into that established background. But the key here is that this is more than prosecutorial discretion; he's not just instructing the AG to deprioritize enforcement of this law, but to actually nullify the law.

[The Margrave of Azilia]

I hate to pile on, but it sounds like President Trump is usurping power by picking and choosing which laws are worth enforcing.

(The first President in history to ever do such a thing!)

[Stupid Government Tricks]

No prosecutor in the history of the world has ever attempted such a massacre of the Rule of Law. Trump is EVIL incarnate.

[SRG2]

It seems to me that Trump's argument is that when a law interferes with executive will, the law must give way. I doubt that there's a single authoritarian or fascist here who would disagree.

[The Margrave of Azilia]

As I suspected, it's not enough to criticize Trump for violating the Constitution, it's also necessary to pretend that he *invented* the practice of ignoring duly-enacted, constitutionally-valid laws and creating enforcement loopholes.

He didn't invent the "national security" excuse for lawbreaking, for example.

[SRG2]

I do not claim that Trump is unique here. But I do note the hypocrisy of condemning prior executive incursions while being comfortable with Trump's - the hypocrisy being most evident with Josh, still waiting for his call from the WH - and the alactiry and breadth of his claim appear unprecedented.

[The Margrave of Azilia]

I'd have to look up some of those "national security" precedents to see how bad Trump's proclamation is by comparison.