We have one president at a time. Congress is right to ban TikTok without waiting for Donald Trump to cut a deal.
B efore Donald Trump even takes office, he is asking the Supreme Court to let him make the first foreign policy mistake of his second term. The Court should decline that invitation.
We have repeatedly editorialized in favor of banning the Chinese company ByteDance from operating TikTok in the United States. (See here, here, here, here, and here). There are three reasons to do so. First, TikTok is a tool for the collection of massive data on Americans by the Chinese government. Second, TikTok enables the Chinese government to extend its reach in suppressing criticism and internal dissent outside its own borders. Third, TikTok is a lever by which the Chinese government can manipulate American public opinion to its advantage, and our disadvantage. These are all compelling justifications to prevent it from being owned or controlled by a Chinese company pervasively controlled by the Chinese police state.
In April, Congress passed the Protecting Americans from Foreign Adversary Controlled Applications Act, which will compel ByteDance to either divest from its controlling stake in the social media company or cease operating TikTok. The United States Court of Appeals for the D.C. Circuit rightly upheld the ban earlier this month against challenges under the First Amendment, the Fifth Amendment takings clause, the Fourteenth Amendment equal protection clause, and the bill of attainder clause. Judge Douglas Ginsburg’s opinion, joined by Judge Neomi Rao (Trump’s former director of the Office of Information and Regulatory Affairs), found that the national security justifications for the ban satisfied even the most stringent scrutiny under the First Amendment. The framers of the First Amendment would have had no trouble with the proposition that Congress may prevent hostile foreign sovereigns from controlling major channels of speech within the United States.
Under the D.C. Circuit’s order, the ban goes into effect on January 19 – the day before Trump takes office. The Supreme Court has agreed to consider TikTok’s challenge to the ban, has set an expedited schedule, and will hear arguments on January 10. National Review has joined with a coalition of groups led by Advancing American Freedom in filing a brief supporting the ban. Among the other notable briefs supporting the ban is one submitted by the attorneys general of 22 states, including three-quarters of the states with a Republican attorney general. Former Trump officials such as Ajit Pai and Jeff Sessions have also filed in support of the law.
Trump, represented by his nominee for solicitor general, John Sauer, has filed a brief in the case asking for “the statutory deadline [to be] stayed [by the Court] to allow his incoming Administration the opportunity to seek a negotiated resolution” to the ban once he takes office. He raises “concerns about possible legislative encroachment on prerogatives of the Executive Branch under Article II” in Congress removing the president’s discretion to exempt TikTok from the ban, and in resolving the issue before he can take office. While his brief “takes no position” on the constitutionality of the ban, it makes clear that “President Trump opposes banning TikTok in the United States at this juncture” and cites “the historic dangers presented by such a precedent,” drawing a parallel to Brazil banning X (Twitter) in order to suppress criticism of the government.
Trump is wrong on all three counts. We have one president at a time, even when that president is a barely-functional lame duck. Trump has no legal standing to ask that decisions be held over until he assumes the power to make them. While prudence sometimes counsels against a departing president preempting his successor, the TikTok ban is the result of carefully-considered bipartisan legislation many months in the making. Having been signed into law, it does not need to wait to be reconsidered by a new president. Indeed, the timeline requiring a resolution by January 19 was included in the statute, reflecting a congressional desire to resolve the matter before the new presidential term begins.
Congress is also well within its powers to make its own national security determinations about levers of foreign influence and espionage within our borders. In an era of legislative lassitude, it should not be discouraged from doing so. While presidents need some flexibility and discretion in negotiating with foreign nations, it has always been the proper province of Congress, as the most representative branch, to constrain that discretion by declaring some matters non-negotiable.
Finally, Trump is wrong on the wisdom of the ban. While he is correct that a drastic step of this nature should not be taken lightly, the fact that so many Americans use this platform for speech is precisely why it should not be controlled by a hostile police state with an unhealthy obsession with spying on our people, our public servants, and its own nationals abroad. Trump suggests that we should refrain from holding a Chinese instrumentality to account for fear of setting a precedent for China or other governments to retaliate. But this runs counter to a core Trump theme: that we’re already getting a bad deal from China and should discard our illusions of a reciprocal two-way relationship. Enforcing the ban is the most publicly dramatic possible way to strengthen Trump’s hand with China by showing that there is support in both parties in Congress for getting serious and abandoning those illusions.
Congress has made the law, and the Court would be right to uphold it. The fact that the next president won’t like it is not a reason to change course.