The Senate should decline to confirm his appointees if he is obstinate in declining to execute the law.
The fact that he is convinced TikTok was an asset in his campaign changes none of the national security concerns.
A t noon on Monday, President Trump took an oath to faithfully execute his office and preserve, protect, and defend the Constitution. The chief executive’s solemn duty in our constitutional framework is, to state the obvious, to execute the laws faithfully. This means, in the absence of a good-faith belief that a law violates the Constitution (in particular, if the Supreme Court has not weighed in on the matter), the president must enforce Congress’s statutes.
Yet, within mere hours of taking this oath, the president patently violated it by illegally granting the Communist Chinese regime and its agents — who are adversaries of the United States, regardless of whether this is a day of the week Trump chooses to see them as such — a reprieve from Congress’s duly enacted TikTok divestiture law (the Protecting Americans from Foreign Adversary Controlled Applications Act, codified at Title 15, U.S. Code, §9901).
The president cannot conceivably harbor a good-faith constitutional objection to the statute. Just last week, it was upheld by a unanimous Supreme Court in TikTok v. Garland.
In an amicus brief Trump filed with the Court as president-elect — a bizarre submission signed by D. John Sauer, Trump’s personal appellate lawyer and nominee to be solicitor general — Trump opposed the ban. But he did not pose legal objections (Sauer: “President Trump takes no position on the merits of the dispute”). Rather, Trump sought to persuade the justices by explaining that he “is one of the most powerful, prolific, and influential users of social media in history”; that he is “the founder of another resoundingly successful social-media platform, Truth Social,” and thus possessed of an “in-depth perspective on the extraordinary government power attempted to be exercised in this case”; and that he “alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government.”
These claims are as irrelevant as they are self-absorbed, and the justices duly ignored them.
The Court focused instead on Trump’s first-term effort to accomplish by executive order what the TikTok law accomplishes by legislation: force ByteDance — the China-controlled parent company of TikTok — to divest. Trump’s actions at the time, though tied up by the courts (as the Supreme Court acknowledged), were properly taken pursuant to statute and righteously grounded on his conclusions that “the spread in the United States of mobile applications developed and owned by companies in [China] continues to threaten the national security, foreign policy, and economy of the United States”; and that the TikTok platform “‘automatically captures vast swaths of information from its users’ and is susceptible to being used to further the interests of the Chinese Government.”
Trump is now president again, but the fact that he is convinced TikTok was an asset in his campaign changes none of these national security concerns — they are simply exacerbated by the fact that the president of the United States, though dutybound to enforce federal law, is shielding our adversaries from federal law. What has changed, however, is that the TikTok law is on the books, and that the Supreme Court upheld it.
The justices concluded, and the president does not dispute, that
the Act’s prohibitions and divestiture requirement are designed to prevent China — a designated foreign adversary — from leveraging its control over ByteDance Ltd. to capture the personal data of U. S. TikTok users. This objective qualifies as an important Government interest[.] . . . Petitioners do not dispute that the Government has an important and well-grounded interest in preventing China from collecting the personal data of tens of millions of U. S. TikTok users. Nor could they. The platform collects extensive personal information from and about its users. See H. R. Rep., at 3 (Public reporting has suggested that TikTok’s “data collection practices extend to age, phone number, precise location, internet address, device used, phone contacts, social network connections, the content of private messages sent through the application, and videos watched.”); 1 App. 241 (Draft National Security Agreement noting that TikTok collects user data, user content, behavioral data (including “keystroke patterns and rhythms”), and device and network data (including device contacts and calendars)). If, for example, a user allows TikTok access to the user’s phone contact list to connect with others on the platform, TikTok can access “any data stored in the user’s contact list,” including names, contact information, contact photos, job titles, and notes. . . . Access to such detailed information about U. S. users, the Government worries, may enable “China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.”. . . And Chinese law enables China to require companies to surrender data to the government, “making companies headquartered there an espionage tool” of China.
As the Court related, the statute allows the president to grant a one-time, 90-day extension but only “if the President makes certain certifications to Congress regarding progress toward a qualified divestiture.” In granting his 75-day reprieve, President Trump made no such certifications. Nor could he have. Under §2(a)(3) of the statute, the three required certifications are that:
(a) a path to executing a qualified divestiture has been identified with respect to such application; (b) evidence of significant progress toward executing such qualified divestiture has been produced with respect to such application; and (c) there are in place the relevant binding legal agreements to enable execution of such qualified divestiture during the period of such extension.
Though all three of these conditions must be met, suffice it to say that none has been (as we pointed out in our editorial).
The president’s suggestion that the government could get involved is a half-baked nonstarter. It’s not clear whether he was speculating that the government could be a partner in the venture (with China’s agents?), or might instead serve as a facilitator of some kind for an American who would partner with China’s agents. But neither prospect makes sense. The notion that the federal government would operate a social media platform (let alone in collaboration with an adversarial regime) raises too many constitutional and national security objections to take seriously. And an American partner would not address the problem the statute targets: ByteDance (or any Chinese partner) would still be beholden, under Chinese law, to share data with, and abet the espionage operations of, the Communist regime.
President Trump’s failure to faithfully execute the law, for the benefit of a foreign adversary, is a profound abuse of power. Obviously, no serious person is contending that President Trump should be impeached over this in the opening days of his new administration — especially given the regularity with which Presidents Obama and Biden flouted their constitutional obligations. That political fact, however, is not an excuse for the Article I branch to sit on its hands while the president refuses to enforce a law that branch passed with bipartisan majorities in both houses — the enactment of which was led by Republicans.
The president is understandably anxious to get his administration up and running. The Senate should decline to confirm his appointees if he is obstinate in declining to execute the TikTok law. In particular, the Justice Department is supposed to enforce and defend congressional laws unless there is a good-faith constitutional objection. Before giving them a confirmation vote, the Senate should insist that Trump’s DOJ appointees — in particular, Pam Bondi for attorney general, Todd Blanche for deputy attorney general, and John Sauer, the aforementioned solicitor general nominee and author of Trump’s TikTok amicus brief — provide an explanation of any constitutional defects in the TikTok law and the legal basis claimed by the administration to justify non-enforcement.
I believe President Trump is poised to take many actions that can help the country immensely — for example, as our editorial today opines, the executive order ending government DEI initiatives (the discriminatory “diversity, equity, and inclusion” protocols) is magnificent. But it is not acceptable for a president to refuse to enforce constitutional statutes, particularly those that are vital to national security. And it is beyond troubling that the president, as he begins a second term he’s had four years to think about, apparently believes he has the power to ignore or rewrite the law — as if the executive branch’s purpose were to execute his whims rather than the legislative branch’s laws.
As I told readers prior to November 5, I believe presidential elections are a binary choice. I was deeply opposed to Kamala Harris’s progressive philosophy and policy agenda; as a conservative, I surmised that Trump would do many things I support, along with many I’d detest. But in the main and with deep reservations, I convinced myself that Trump was preferable because, though both candidates would be inclined to abuse their powers, “the system’s guardrails — Congress, the courts, the administrative state, the armed forces, the state governments, the media, and business leaders — are zealous in policing against executive excess when a Republican is in power.”
I guess we’re about to find out if I was deluding myself.