TikTok Schadenfreude 

I'll admit, I have not followed all of the legal developments in Trump 2.0 carefully. During the first administration, I closely tracked nearly every policy and district court ruling. It was exhausting. This time around, I've triaged. If I've written about something, it means I am following the issue. If I haven't written about it, that means I am not following the issue. Please do not take my silence on an issue as a reflection on whether I agree or disagree with any particular position.

One such issue that I've let go is TikTok. I wrote about the Supreme Court's (quickly forgotten) decision, President Biden's outgoing order, and President Trump's incoming order. But since then, I haven't tracked the issue.

Recently, Charlie Savage published an article in the Times titled "Trump Claims Sweeping Power to Nullify Laws, Letters on TikTok Ban Show."

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, newly disclosed documents show.

In letters to companies like Apple and Google, Ms. Bondi wrote that Mr. Trump had decided that shutting down TikTok would interfere with his "constitutional duties," so the law banning the social media app must give way to his "core presidential national security and foreign affairs powers."

The letters, which became public on Thursday via Freedom of Information Act lawsuits, portrayed Mr. Trump as having nullified the legal effects of a statute that Congress passed by large bipartisan majorities in 2024 and that the Supreme Court unanimously upheld.

My reaction? Schadenfreude.

For more than a decade, I've written about how the Obama Administration nullified the Affordable Care Act's mandates, as well as immigration law through policies like DAPA and DACA. I'm sure smart lawyers can draw distinctions between the Obama orders and Trump's orders. But I'm not sure those distinctions matter. President Obama found ways to disregard laws he didn't like through hyper-creative means, but since those laws accomplished "positive" goals, everyone looked the other way. It might be true that Trump has leveled up with his most recent actions, but none of this would have been conceivable without precedents more than a decade ago.

Perhaps the greatest Schadenfreude comes from the aftermath: no one has standing to challenge the suspension of the laws. The OLC opinion announcing DAPA boasted about this fact. Here too, Trump's latest order does not seem susceptible to a challenge. Then again, people like to scroll through TikTok videos, so there is no appetite to stop it.

Comments

[MollyGodiva]

Welcome to fascist America.

[Kazinski]

Funny that, Trump is a fascist for not shutting down TikTok, but a lot of the Reason columnoists were making the argument that shutting down TikTok was fascist.

[Malika the Maiz]

It’s almost like there’s a the President shall take Care that the Laws be faithfully executed thing in our laws!

[Mr. Bumble]

Long history of Presidents picking and choosing.

[Bwaaah]

And the partisan public's lack of genuine commitment to their avowed legal principles. Anything for the win; principle shminciple.

[Poxigah146]

If he believes the Constitution prohibits what Congress passed, then he must faithfully decline to execute.

[Riva]

And that is the difference between President Trump's actions and Obama's lawlessness. Obama simply ignored the law because it didn't suit him. President Trump is faithfully executing his duties under the Constitution.

[hobie]

Well, during the campaign, he did indeed say he might just suspend the Constitution...or ignore it. I forget which of the two he said. To be honest, it is more like "faithfully executing his duties under the" Trump Constitution

[Riva]

And here we have another distinction that the dim witted fail to understand. The difference between humor and a serious remark.

[MollyGodiva]

That is an utterly absurd comment. Trump is trampling on the Constitution.

[Riva]

Was Obama trampling the Constitution? The AG presents the constitutional argument in a series of letters. Apart from hysterical name calling in TDS deranged rants, what are your counter arguments?

[Incunabulum]

Like Obama and Biden?

[Sarcastr0]

Nothing like this, but even if there were Bit Obama just reveals how little principle you have.

[Stupid Government Tricks]

No response to what Obama did, as Josh wrote? Just memory hole it, and it doesn't count.

[Malika the Maiz]

Whataboutism as a worldview.

This is the most common “defense” of Trump around here. If you thought it was wrong when Obama did it it’s wrong here too, you’re just telling the world you have no principles.

[Incunabulum]

You thought it was right when Obama did it but you think it's wrong when Trump does it - you are telling the world you have no principles and thus we should ignore you when you come on about Trump.

Your boos mean nothing to me - I have seen what makes you cheer.

[Sarcastr0]

Amazing you don't see the fundamental flaw in 'this bad thing makes me happy because Obama.'

it's also notable that Josh saying Obama and Biden did nullifications doesn't carry much weight with people who aren't Josh.
We've been over that disputed ground around here. By contrast, even Josh isn't disputing what Trump did, he's just declaring he doesn't care.

[Kazinski]

Yet you have half the commentariat here bewailing that Trump is enforcing the immigration laws as Congress wrote them, and say he shouldn't enforce immigration laws unless the illegal.immigrants have been tried and convicted.of breaking other laws. That's not what the law.says.

It's almost like you are picking and choosing the laws you like, like Trump.

[Randal]

I haven't seen any commentators bewailing the enforcement of immigration laws. We're bewailing the lack of due process, the illegal misuse of the military, and the ridiculous misapplication of the Alien Enemies Act.

Obama deported more people than Trump has. Deportations, in and of themselves, aren't the problem.

[Riva]

Now we're back to fascism? I thought it was "no kings"? But don't be afraid of beclowning yourself further. Yeah, I know, never go full retard. But forget that and go full retard. Embrace "fascist king." Or start a new own original tantrum with "fascist emperor"?

[Malika the Maiz]

Riva bot just crawled Tropic of Thunder!

[Riva]

It's called Tropic Thunder. Odd to confuse the movie with the Tropic of Capricorn, even for an imbecile at your level. A mistake a bad AI tool would make. Kind of ironic, isn't it little moron?

[Stupid Government Tricks]

Uhh, no comment on it starting a few years prior with your light savior?

For more than a decade, I've written about how the Obama Administration nullified the Affordable Care Act's mandates, as well as immigration law through policies like DAPA and DACA.

Of course, it actually goes way way back, but who's counting.

[A Japanese Student]

Prosecutorial discretion has always been a thing. Not sure why they'd have to declare it unconstitutional under Article II or something like that. Aside from Zivotofsky I'm not aware of any precedent invalidating a statute for that reason, and even under that standard Congress could have done anything except declare the territorial extent of a country.

[Krayt]

If he had stuck to the usual sophistry of not enough resources, there'd be less pushback then declaring companies can legally ignore the law. They cannot, the president just declines to enforce the law.

When the administration changes hands, that won't avail them much, as mysteriously, the resources suddenly become available.

Though other lawyers may get in the way of the next president speaking ex cathedra reversing the previous one's pontifications.

We have to see the policy and which side we are on before we praise the reversal, or the blocking of the reversal.

[wvattorney13]

"Prosecutorial discretion has always been a thing."

I agree, but the meaning of that term has changed tremendously in the last 10 or so years. It used to be reserved for the rare case that caused an injustice or at least evinced a policy of lax enforcement---not looking for certain violations.

This idea of using it to wholesale nullify laws that the executive doesn't like, and imposing a whole slew of new quasi-regulations to implement the new executive policy is a very recent development.

IOW, if the law says no beer in the park, it is one thing to look the other way if responsible adults are sipping beer out of a coozy. It is another thing to start issuing beer permits to those over age 30 and limiting beer to 4 punched tickets per person. The first is a prosecutorial policy, the second is just making new law.

[Sarcastr0]

This is the only example of a law being wholesale ignored. It was a dumb law, but that doesn't matter.

The right can carp about the INA, but it wasn't being ignored if you care to go beyond the vibes to the law itself and the appropriations they had.

[Krayt]

There were sepecialists in pushing peoples' buttons, right here, pushing them about ignoring the law.

[Sarcastr0]

Nah, you just convince yourself of a lot of weird stuff so you can bothsides MAGA and the Dems.

You are ideology first, not facts first. So if you can't insist government exists only to further corruption you'll just deflect or reinterpret or ignore.

[Stupid Government Tricks]

Recent, as in Obama refusing to deport millions of illegal immigrants whose families included young children?

[Sarcastr0]

Obama refusing to deport
Not what the INA requires.

[Incunabulum]

You can't just decline to enforce the law - prosecutorial discretion doesn't extend to openly flouting it (as a FL DA found out a few years back).

You can talk about prioritization and resource allocation and how such and such is a low priority but you can't come out and say you'll not enforce a law.

[Stupid Government Tricks]

Unless you're a Democrat prosecutor refusing to enforce shoplifting or rioting laws.

[Sarcastr0]

You and Incunabulum are going pretty far afield for your whattaboutism now, eh?

When even your fallacies are running dry, maybe you should hang it up.

[Kazinski]

Should Trump vigorously enforce immigration law then?

Just a few weeks ago I seemed to remember you saying he shouldn't enforce it in Los Angeles, at least, and Blue states generally.

[bacchys]

The FL DA hadn't flouted the law or refused to prosecute violators. You're mindlessly believing idiot rightwing propaganda.

[Incunabulum]

Sure. That's totally not why DeSantia relieved him.

[Doug Heffernan]

We all should appreciate Blackman's candor about what brings him joy. For a somewhat less emotional take, see Goldsmith's substack piece:
https://executivefunctions.substack.com/p/an-authority-to-license-illegal-conduct

Regardless of what OLC said in 2014 about standing to challenge DAPA, it was challenged and stopped (via universal injunction).

[Doug Heffernan]

I forgot to mention, Goldsmith links to testimony by an authority on the relevant history, and guess who it is? It is none other than Josh Blackman! Blackman (after he finishes blushing and adding the cite to his annual media diary), should take the opportunity to revise and extend his testimony to include details about when to apply the Schadenfreude doctrine.

[Lee Moore]

I was puzzled by one bit of Goldsmith’s account - where he says that Trump’s action is akin to a civil pardon.

I do not pretend to understand the distinction between civil and criminal law, I only remark that civil offenses seem to me to be a contradiction in terms. So far as I can see the TikTok thing involves a statute that says you may not do such and such and if you do, the punishment is so much.

If the courts have concluded that this sort of thing does not constitute criminal law and a criminal sanction, that strikes me as decidedly odd.

[Drewski]

"If the courts have concluded that this sort of thing does not constitute criminal law and a criminal sanction, that strikes me as decidedly odd."

You think it might have something to do with Congress specifying that it's a civil penalty and not criminal?

[Lee Moore]

I don’t know, that’s why I’m asking.

But if Congress should pass a law saying that “selling heroin in interstate commerce is forbidden and if you do it you can be sent to prison for a minimum of 15 years….but hey this is only a civil penalty” so the government does not need to trouble itself with the normal legal protections for criminal defendants, I’d be surprised if Congress’s label would pass muster with the courts.

But I’m used to being surprised by what lawyers come up with.

[Drewski]

You're surprised that many lawyers don't see a fine as morally equivalent to imprisonment?

[Stupid Government Tricks]

You always answer questions with questions?

[Drewski]

Do I?

[David Nieporent]

Don't you?

[Lee Moore]

You started off suggesting that the distinction between criminal and civil offenses is simply a matter of the label attached in the statute. You now seem to suggest that the distinction lies in how lawyers feel about moral questions.

Your second try doesn’t seem any more convincing than the first. I can’t help thinking that there must be some kind of objective distinction, but a little deeper than mere labelling.

But hey if you don’t know the answer that’s OK. I don’t know it either.

[wvattorney13]

They typically have a multi-factor test and analyze if the scheme as a whole looks civil or criminal in nature. The label is but one factor.

In your example a single factor---15 years in prison---makes it nearly certainly a wholly criminal sanction no matter the label placed on it.

[Lee Moore]

Thank you.

I found this :

https://www.flmd.uscourts.gov/civil-or-criminal-do-you-understand-difference

It seems to me that the common factor in each of the cases to which the answer is "civil" is that there is a person, other than the government, who has been harmed in some way, and who is entitled to recover damages. Which is my amateur understanding of civil as opposed to criminal.

It still therefore leaves me grasping at air at the notion of a civil offense where there is no identifiable person who has been harmed, and where it is the government who is bringing the case, and where the penalty has nothing to do with any alleged damages to anyone in particular.

This sort of thing looks exactly like a criminal offense - the government forbids and then penalises you for committing it.

I really can't see why the penalty being financial rather than prison time* would make any difference to the conceptual difference between you harming a particular person or persons and being required to compensate them for the injury you have caused, and breaking a government rule, and being penalised for doing so.

* after all, they used to have debtors prisons.

[Drewski]

The first question was why the courts seem a civil statute as civil. The second was about whether a fine and imprisonment are the same thing. I understand that you're easily confused.

[Krayt]

Can the next admin go back and prosecute, or is "The president said we could!" a valid defense? Let's assume the president doesn't blanket pardon them.

Iirc Obama had a policy of not prosecuting medical marijuana in states that allowed it. Could a hardline new admin go after past actions sans a pardon?

As it all relies on sophistry of "insufficient resources", accompanied by a rationalization tied to fear of millions of voters (ironically, the only honest thing going on, be it tokers or Tockers), could a new admin's reprioritization of law importance reach lawless behavior in the past? Admins prosecute crimes during the previous 4 years and nobody bats an eye.

[Lee Moore]

When can you rely on reliance interests ? When the Chief Justice thinks the NYT will write a cruel op-ed about him otherwise. So it depends what the NYT is thinking about TikTok at the time.

The pardon thing goes back to my earlier question about civil offenses. Goldsmith seems to think this stuff is all civil.

[bacchys]

Congress passed a law limiting enforcement of federal marijuana laws in states which had legalized it.

[Bubba Jones]

Ah yes. The “what about Obama” legal scholarship that I crave.

[hobie]

Do you think Blackman covers 'How To Use Whatabout In Legal Writings' in his first or second semester classes?

[David Nieporent]

Well, I give credit to Blackman for not even pretending to be a legal scholar anymore.

[Mr. Bumble]

...unlike you.

[hobie]

If David is a lawyer, then his job is to lawyer. Since Blackman is supposedly a plenipotentiary scholar, you would expect him to scholate instead of engaging in political scores and self-promotion

[JoeFromtheBronx]

The "smart lawyers" in comments here in other places have discussed certain differences.

"It might be true that Trump has leveled up with his most recent actions, but none of this would have been conceivable without precedents more than a decade ago."

Now do his birthright citizenship order. I wish this "it's Obama's fault" energy might be done for good things too.

"I learned it from you" is better left to old anti-drug ads.

[Sarcastr0]

"Schadenfreude" - pleasure derived by someone from another person's misfortune.

1) You know it's bad that this admin is fully ignoring a law for pretextual reasons.
2) This gives you pleasure.
3) You think this monarchical lawlessness is happening to some other group of people.

[hobie]

I was all ready for a superb legal analysis by America's 'National Thought Leader'. Had on my robe and slippers. Pipe and hot toddy at hand.

"My reaction? Schadenfreude.

For more than a decade, I've written about how the Obama Administration..."

Sigh. Not today it seems

[Voize of Reazon]

Obama could at least make a prima facie argument that constrained resources made pursuing millions of DACA cases impractical, so in the interest of fairness he chose to defer action generally. I thought it was a pretext, but in another example of Actions Having Consequences we have since learned from Trump's Supreme Court that we may not question a President's discretion within his core constitutional responsibilities. Prioritizing executive action to make the best use of scarce resources is certainly one of those, so it is now forbidden to inquire into Obama's real motives.

Trump however can't make the same claim. There aren't millions of TikToks, just one. If he cares to justify his inaction he will have to find a precedent to point to that doesn't pretend to involve ordinary enforcement discretion.

[Incunabulum]

The 'Trump Supreme Court's says the President may act within his authority??!!! SHOCK! HORROR!

Next they'll be saying the courts may act within their authority. Or that Congress may!

[David Nieporent]

I think worse than Trump's refusal to obey the law and assertion that he is entitled to ignore the law is the reason he gave: that "Mr. Trump had decided that shutting down TikTok would interfere with his "constitutional duties," so the law banning the social media app must give way to his "core presidential national security and foreign affairs powers."

He of course has no such powers. And there's not even a colorable argument as to how shuting down TikTok could in fact interfere with them if he did.

[David Nieporent]

I'm sure smart lawyers can draw distinctions between the Obama orders and Trump's orders.

So… should we take this as an implicit admission that Blackman is not a smart lawyer?

[Randal]

I'm planning to take it as an explicit admission.

[bernard11]

Well, it's hardly necessary to admit that which is obvious.

"In baseball news, Aaron Judge today admitted that he is a big guy."

[John F. Carr]

If Trump inherited a "get out of law free" card from his predecessors I wish he would use it on something more important than Tik Tok.

[Randal]

Schadenfreude.

Mature. There will be another Democratic president you know.