Wait, Can He Actually Do That? Part 1: Overview and the TikTok Executive Order
If I were going to start hosting a podcast, I would title it "Wait, Can He Actually Do That?" Each week, my expert guest and I would examine one of the latest actions by the Trump 2 administration that breaks longstanding norms and seemingly exceeds the president's authority. Perhaps given the number of such actions we have already witnessed, it would need to be a daily or even an hourly podcast.
However, I'm not going to host a new podcast. I'm already too busy, and there are already too many good (and even more bad) podcasts available. Instead, consider today's essay the first in an occasional series to run on this blog so long as Donald Trump remains in the White House.
In today's essay, I tackle the executive order (EO) purporting to give TikTok a reprieve for 75 days. Future topics in the occasional series may include (not necessarily in the following order) the EO restricting birthright citizenship, the EO seeking to punish state and local officials who don't participate in the crackdown on undocumented immigrants, and more of the legally dubious and morally outrageous actions that have so far come out of and are likely still to come from the White House.
But for now, let's talk about TikTok. As readers likely recall, Congress enacted the Protecting Americans From Adversary Controlled Applications Act (PAFACA) last year. It specifically defines foreign-adversary-controlled apps to include TikTok, ByteDance, and any possible successors or subsidiaries that have not been fully sold to a party or parties not answerable to the government of a "foreign adversary country." (A federal statute concerning import controls based on security concerns, referenced by PAFACA, lists exactly four "covered nations": North Korea; China; Russia; and Iran.)
The Supreme Court unanimously upheld PAFACA on January 17, and so, by its terms, it went into effect on January 19, causing a roughly 12-hour blackout. As readers no doubt know, TikTok went back online after then-still-President-elect Trump announced that he was going to delay or even block the ban. He signed an EO purporting to do so within hours of his inauguration.
Wait, can he actually do that? It's a bit complicated but no, not exactly.
PAFACA permits the president to delay its implementation one time for up to 90 days, but only if certain conditions are satisfied, including that there are in place "binding legal agreements" for a divestiture. No such agreements exist now, and for that reason, Trump did not invoke PAFACA's extension clause. It's also not clear that the delay can occur after the ban has gone into effect, which occurred the day before Trump took office.
Instead of relying on the 90-day extension provision, the EO asserts that Trump, as president, has "the unique constitutional responsibility for the national security of the United States, the conduct of foreign policy, and other vital executive functions." The operative portion of the EO then instructs the Attorney General of the United States not to enforce PAFACA for 75 days. It includes a further declaration that anyone who violates PAFACA during those 75 days won't later be sued by the AG.
The invocation of the president's role in national security and foreign policy matters is manifestly insufficient to justify the order. This case falls within Justice Robert Jackson's Category 3 in the Steel Seizure Case, where the president's power--exercised in the teeth of an act of Congress--is at its "lowest ebb." Given congressional power to regulate foreign trade and various matters implicating national security, Trump cannot plausibly claim that his TikTok EO falls within an area of exclusive presidential power. It is substantially less justifiable and more clearly contrary to the will of Congress than what President Truman attempted in Steel Seizure, and Truman lost.
The EO would have done better to invoke the power of the executive branch to exercise prosecutorial discretion. The president's constitutional duty to take care that the laws are faithfully executed has never been understood to require a president (or AG) to enforce every law to the maximum extent with respect to every violation. Given resource constraints, that's impossible.
Whoever wrote the TikTok EO might have pointed to other policies of forbearance, including with respect to marijuana, which remains illegal under federal law. Since the Obama administration, the federal government has engaged in a policy of enforcement forbearance with respect to state-legal marijuana growth, distribution, and possession. When then-AG Jeff Sessions made a bid to change that policy in the first Trump administration, I explained why I thought the change was substantively bad but procedurally defensible in a Verdict column and an accompanying blog post. For present purposes, we can say simply that whatever doubts one might have about a wholesale policy of non-enforcement of some part of the law--whether it's under-enforcement of the federal marijuana law or under-enforcement of federal immigration laws (via DACA, for example) a decision to forbear enforcement of a federal law for just 75 days seems to fall pretty squarely within the heartland of prosecutorial discretion.
If that sounds like a defense of the TikTok EO, it isn't. The basic problem with the TikTok EO is that it makes an unenforceable promise.
The only enforcement mechanism in PAFACA consists of civil lawsuits by the AG, but they can be incredibly costly, because PAFACA authorizes civil penalties of up to the number of users who download or update the app via an app store times $5,000. The U.S. has well over 150 million TikTok users. That means collective fines of up to or exceeding $750 billion for Apple and Google, which run the app stores in the U.S. They have a collective market capitalization of under $6 trillion, which is a lot, but a fine worth more than an eighth the value of a company would be extraordinarily painful.
The EO says that the AG won't bring enforcement suits for actions during the 75-day period, even after that period expires, but that's not an enforceable promise. PAFACA doesn't include an express statute of limitations (SOL) for enforcement actions by the AG, so the statutory default SOL of five years applies. As numerous commentators have noted, that means that Trump's successor (assuming he doesn't declare himself president for life or a god) could bring enforcement actions for violating PAFACA even during the 75-day period. Indeed, well before that, there is nothing to stop Trump from changing his mind and instructing his AG to go after Apple and Google after all. He has already changed his mind once about the desirability of a TikTok ban; he could do it again. Or it is possible to imagine him getting angry at Apple and/or Google for something unrelated and then revoking the EO to remove the protection against post hoc liability.
Faced with the prospect of hundreds of billions of dollars in civil penalties if they restore TikTok to their app stores now and then inadvertently do something that later enrages Trump, it is no wonder that the app remains unavailable for downloading or updating for iPhones or Android devices. Somewhat to my surprise, however, TikTok remains available on the web, which puts Oracle (a key service provider for TikTok) at risk of crippling liability. Oracle co-founder Larry Ellison has been working closely with Trump, so perhaps he thinks that protects the company, but this strikes me as quite a gamble. Ellison might want to have a chat with Mike Pence.
Maybe this will all end with Xi Jinping green lighting the sale of TikTok to Oracle, to Elon Musk, or to some Trump-controlled entity in exchange for abandonment of tariffs on Chinese goods or a secret deal by Trump to sell out Taiwan or some other incredibly corrupt bargain. Trump has also suggested incoherently that the United States government could get a half-stake in TikTok in exchange for a "permit," which would be an absurd and dangerous role for the federal government to play. It also wouldn't necessarily satisfy PAFACA because half-ownership could still qualify as foreign-adversary control.
All of the foregoing is interesting and indeed somewhat amusing, but only because the stakes seem pretty low. TikTok is a huge waste of time. Whether it exists in the U.S. or not doesn't really matter. If it doesn't, people will find some other way to waste their time. But the combination of lawlessness, incompetence, and corruption displayed by Trump with respect to TikTok is characteristic of his style of leadership and downright dangerous in other settings. For examples where the stakes are higher, stay tuned for more dire installments of Wait, Can He Actually Do That?
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Postscript Update: Thanks to a reader who pointed me to the default SOL. An earlier version of the foregoing expressed uncertainty about where the claimed five-year SOL came from.