President-elect Donald Trump is reportedly mulling unconventional ways to save TikTok from an impending US ban, including an executive order that would push out enforcement of the new law by months.
But doing so could mean contravening federal law, heightening the danger that such a rescue could face serious legal hurdles.
An executive order offers Trump only a “narrow chance” of securing TikTok’s survival, said constitutional scholar and Kent Law School professor Mark Rosen. “Under current Supreme Court precedent, an executive order is on very shaky ground.”
The executive order being considered by Trump, as reported first by the Washington Post and confirmed by other media outlets, would suspend enforcement of the TikTok law for 60 to 90 days.
It is scheduled to take effect this Sunday unless the Supreme Court overturns it before then. Chinese parent ByteDance can also stop the ban from taking effect by selling TikTok’s US operations to an owner not controlled by a foreign adversary.
Donald Trump is reportedly considering an executive order giving TikTok more time to survive in the US. (AP photo/Evan Vucci) ·ASSOCIATED PRESS
Trump, who on the campaign trail suggested in a social media post that he would “save TikTok,” has asked the Supreme Court to suspend the divest-or-be-banned deadline and consider his preference for a “negotiated resolution” — given that, as president, he will be responsible for national security. Trump takes office on Jan. 20.
The main precedent that makes a Trump executive order an unreliable safe haven for TikTok comes from a limitation on presidential power established in the landmark 1952 Supreme Court case titled Youngstown Sheet & Tube Co. v. Sawyer.
In that case, the court struck down an executive order issued by President Harry Truman directing the US Commerce Department to take over the nation’s steel mills.
Truman’s order purported to keep a labor strike from threatening US steel protection during the Korean War.
Despite that claim, the court ruled the president lacked the power to overtake private property, even during a time of war.
Subsequent courts have been reluctant to identify independent, exclusive presidential authority that conflicts with law, Rosen said, because it risks vesting the president with “king-like” power.
In 1952 then-President Harry Truman, speaking from the Oval Room of the White House, announced in a nationwide television-radio broadcast that he ordered immediate government seizure of the nation’s steel industry to avert stoppage in steel production. ·Bettmann via Getty Images
When an executive order is inconsistent with a law, Rosen explained, it can only withstand a challenge if the law is proven unconstitutional or if the president proves he has separate executive authority to issue it.
Trump, for example, could try to challenge the TikTok law’s constitutionality on grounds not yet decided by the Supreme Court. In its current deliberations, the Supreme Court is considering whether the law violates the First Amendment’s speech protections, an argument made by TikTok and TikTok users.
Alternatively, Trump could try to assert that executive authority exists despite the law.
But a national security argument would be an uphill road for Trump given that Congress specified that its intent in passing the law was to protect national security.
Any executive order from Trump would also create a new legal dilemma for a number of US tech giants that are required by law to put the TikTok ban into effect.
The way the ban is enforced under the law is that it will no longer be legal for app stores run by companies like Apple (APPL) and Google (GOOG, GOOGL) to allow users to download TikTok from their app stores, nor can cloud-storage companies like Microsoft (MSFT), Amazon (AMZN), and Oracle (ORCL) host the app.
Penalties for violations range up to $5,000 for each access provided to a US user.
Trump could ask his attorney general not to enforce the law — his nominee Pam Bondi didn’t commit to enforcing it when questioned by lawmakers this week. But Apple and Google still have to weigh whether that’s a risk they want to take.
There are less risky paths for Trump to take. He could push Congress to overturn the law or to encourage lawmakers to pass a law extending the Jan. 19 deadline. This week, Sen. Ed Markey did introduce a bill that would extend the deadline by 270 days, according to a statement.
The Supreme Court has yet to rule on a divest-or-be-banned TikTok law. (AP Photo/Jacquelyn Martin) ·ASSOCIATED PRESS
He could also find a buyer for the US operations, or even a piece of it. Chinese government officials, according to reports by Bloomberg and the Wall Street Journal, have discussed selling the US business to Elon Musk, the owner of X.
The officials would prefer to keep TikTok under ByteDance ownership, according to the media reports, but have discussed the sale to Musk as among their contingency plans.
Antitrust experts predict that Musk could clear US legal hurdles imposed by a TikTok acquisition, which some estimate could amount to $40 billion-$50 billion. One reason is TikTok and X have distinct users.
Musk has a close relationship with the incoming president, having spent more than $250 million supporting his reelection campaign and helping lead a government cost-cutting effort as part of a new Department of Government Efficiency (DOGE).
Musk paid $44 billion for X in 2022 and also runs a number of other companies, including electric vehicle maker Tesla (TSLA), SpaceX, Neuralink, the Boring Co., and artificial intelligence startup xAI.
Tesla has a factory in China and sells a lot of its cars to that part of the world.
But Bloomberg and the Wall Street Journal both reported there are a number of unknowns surrounding any possible deal with Musk.
They include whether he would have to sell any other of his holdings, whether US regulators would approve, and what sort of influence officials in Beijing would have in suggesting ByteDance sell to a particular buyer.
A TikTok spokesperson responded to the Bloomberg report by saying, “We cannot be expected to comment on pure fiction.”
