The Volokh Conspiracy
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President Trump's TikTok Executive Order
Four days ago, the Supreme Court upheld the TikTok ban. Even before that decision was issued, President Biden announced that he would not enforce the policy for the final 36 hours of his presidency. (In hindsight, he may have been too busy signing pardons.) Yet, for a short while, TikTok went dark. And then TikTok turned on again, in anticipation of Trump's inauguration. On his first day in office, Trump signed an executive order concerning TikTok.
The order echoes President-Elect Trump's amicus brief. Trump asserts that the law impinges on his authority over national security:
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.
Like in the brief, Trump refers to the timing of the statute as "unfortunate." This timing was no accident. Congress intended this decision to fall to President Biden.
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.
And Trump repeats his refrain that he can make a deal.
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.
Trump directs his administration to take no action against anyone for seventy-five days.
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.
Trump doesn't quite say that the statute is unconstitutional. There is no basis, then for an Article II override. Rather, this seems to be purely an act of prosecutorial discretion. But it is more than that. Trump promises that no future penalties will be imposed on companies that work with TikTok.
Sec. 2. Action. (a) I hereby order the Attorney General not to take any action on behalf of the United States to enforce the Act for 75 days from the date of this order, to permit my Administration an opportunity to determine the appropriate course of action with respect to TikTok. During this period, the Department of Justice shall take no action to enforce the Act or impose any penalties against any entity for any noncompliance with the Act, including for distributing, maintaining, or updating (or enabling the distribution, maintenance, or updating) of any foreign adversary controlled application as defined in the Act. 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.
In theory at least, the next administration could choose to bring an action within the statute of limitations. But that is unlikely. What makes this more unlikely is that the Attorney General must issue a non-enforcement letter:
(b) The Attorney General shall take all appropriate action to issue written guidance to implement the provisions of subsection (a).
(c) 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.
I am fairly certain that these sorts of letters can be relied upon in the event of any future enforcement action. Alan Rozhenstein flags Zach Price's article about reliance on non-enforcement. Alan makes some fair points, but as a matter of realpolitik, I doubt there will ever be a prosecution. And that is enough for the lawyers at Oracle and Akami.
Apart from the estoppel argument, I see here a fairly clear violation of the Take Care Clause. This is not simply an exercise in discretion. The President is authorizing the violation of a statute that was just upheld by the Supreme Court. And this order, like others, issues direct orders to the Attorney General about how to exercise prosecutorial discretion. Trump is making clear that he sees the Attorney General as his subordinate. I am inclined to agree with this view of Article II, but it represents a departure from how past presidents have interacted with their Attorneys General.
Finally, the Attorney General can take steps to block enforcement of the ban by private parties or states.
(d) 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.
I'm a bit confused, as I don't see any private causes of action under the statute.
As a coda to signing the order, President Trump announced one possible deal:
The order, one of Mr. Trump's first acts after taking office, instructs the attorney general not to take any action to enforce the law so that his administration has "an opportunity to determine the appropriate course forward." The order is retroactive to Sunday.
As he signed the order, Mr. Trump told reporters that "the U.S. should be entitled to get half of TikTok" if a deal for the app is reached, without going into detail. He said he thought TikTok could be worth a trillion dollars.
The order could immediately face legal challenges, including over whether a president has the power to halt enforcement of a federal law. Companies subject to the law, which forbids providing services to Chinese-owned TikTok, may determine that the order does not provide a shield from legal liability.
Trump said: "If I do the deal for the United States, I think we should get half."
After Trump filed his brief, I wrote:
After nearly a decade, I think people still do not understand Trump. He doesn't play like everyone else does, and that is what infuriates people. When he says something that people deem outlandish, it is merely an opening bid, not the final offer. I think he views this case like he views just about everything else--as a deal to be made.
All his proceeding are going to plan.
