In the run-up to the election, Donald Trump made a plea to his followers. “FOR ALL THOSE THAT WANT TO SAVE TIK TOK IN AMERICA, VOTE TRUMP!” he posted to his Truth Social account in September. Since then, he’s been working to make good on that pledge.
He hosted TikTok’s CEO, Shou Chew, at his Mar-a-Lago estate in December, implored the US supreme court to delay a TikTok ban and he’s now reportedly considering an executive order to postpone the app’s disappearance. Chew is slated to join Trump at his inauguration in what appears to be a show of solidarity with the embattled executive.
TikTok is on the brink of being expelled from the US, unless it sells to a non-Chinese parent company. Its digital demise comes after Congress overwhelmingly passed a bipartisan law deeming the social media app a national security threat because it’s owned by Beijing-based ByteDance. TikTok has battled that law up to the supreme court. Now the company, along with its 170 million US users, is awaiting a ruling that seems increasingly unlikely to come before the 19 January deadline, as the court seemed skeptical of its legal arguments.
Though the law only requires the app to no longer be downloadable in smartphone app stores, TikTok itself is planning to shut down access to existing users the day the ban goes into effect, according to multiple reports. Biden’s administration is reportedly considering ways to keep TikTok available after 19 January, even though it was Joe Biden himself who signed the legislation into law last April.
If that fails and the supreme court upholds the ban, all is not over for TikTok, according to legal scholars. As president, Trump could intervene. The ban is scheduled to go into effect on Sunday and Trump will be sworn into office the very next day. Postponing or reversing the TikTok ban could hand him an early-on political win.
“If all he wants is to buy some time to ‘save TikTok’, then he can do that – all it takes is simply doing nothing,” said Saurabh Vishnubhakat, professor at Cardozo School of Law. “All he has to do is not enforce the law vigorously right away, and the status quo can carry on.”
The president has enforcement discretion over the attorney general and justice department. Even though the TikTok ban is law, Trump could instruct the justice department to simply ignore it, Vishnubhakat said.
“The justice department can say: ‘We’re not going to prosecute every single crime. We’re going to prosecute the ones we think are important. And we just happen to think that the TikTok ban is not as important as other things,’” Vishnubhakat added.
The way the TikTok ban works is that rather than targeting TikTok or ByteDance, it will punish the companies that distribute and host the app. That means Google and Apple could see billion-dollar fines if they continue to offer TikTok in their app stores. But, legal scholars say, Trump could indicate he won’t go after them either.
“Big tech companies could say: ‘Trump has told us he wants TikTok, and we want to be in good with the president,’” said Gus Hurwitz, an academic director at the University of Pennsylvania Carey Law School. He said the companies could continue to allow downloads of TikTok and trust the justice department won’t sue them.
Hurwitz said this could get tricky, however, because the president could just as easily change his mind. This whole situation “isn’t about the law”, he said. “This is about political judgments and business judgments that the companies are going to be making.”
Buying time to ‘save TikTok’
If Trump instructs the justice department to ignore the law, he couldn’t do it indefinitely because that could provoke a legal challenge. But a move like this could buy time for Trump and TikTok to figure out a way for ByteDance to sell the business or for Congress to pass another law to supersede the current one.
A bipartisan group of senators, including Ed Markey of Massachusetts and Rand Paul of Kentucky, have already been urging Congress to either reverse the TikTok ban or extend the deadline past 19 January. They say the ban violates the free speech of the millions of Americans who use the app, echoing TikTok’s arguments in court.
Trump is also considering an executive order, according to the Washington Post. This order could halt enforcement of the TikTok ban for 60 to 90 days while a contingency plan is worked out.
The Trump-Vance transition team did not respond to questions about the executive order but spokesperson Karoline Leavitt said: “President Trump has repeatedly expressed his desire to save TikTok, and there’s no better dealmaker than Donald Trump.”
after newsletter promotion
Though the president-elect is working to save TikTok from its legislative fate, the idea of banning the app originated with him. In 2020, Trump issued an executive order about the risks of the social media company and said the US “must take aggressive action against the owners of TikTok to protect our national security”. That order was struck down in a legal challenge.
Since then, however, Trump has become a TikTok fan. During his campaign, he created his own account and amassed nearly 15 million followers.
Last month, after the supreme court agreed to take up the case, Trump filed an amicus brief, or “friend of the court” brief, to the justices. He requested a pause to the ban, so that his administration could “pursue a negotiated resolution”.
“President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform,” reads the brief. “Such a resolution would obviate the need for this Court to decide extremely difficult questions.”
During oral arguments at the supreme court last week, TikTok’s lawyer indicated that Trump would be able to intervene. “It is possible that come January 20th, 21st, 22nd, we might be in a different world,” Noel Francisco said. He then asked the justices to put a temporary hold on the ban to “simply buy everybody a little breathing space”.
One justice asked the US solicitor general, who argued to uphold the TikTok ban-or-sale law, whether Trump could choose not to enforce it. “The president has enforcement discretion,” the lawyer conceded, though she added he should first review updated national security information before ignoring an act of Congress.
Nearing the end of the proceedings, Justice Sonia Sotomayor cautioned against any sort of meddling with the legislation.
“I am a little concerned that a suggestion that a president-elect or anyone else should not enforce the law when a law is in effect and has prohibited certain action,” Sotomayor said. She added that she was also worried “a company would choose to ignore enforcement on any assurance other than the change in that law”.