TikTok’s humiliating defeat at the Supreme Court on Friday, and the company’s ensuing, quickly reversed choice to “go dark,” presents Donald Trump with an early test in his second term. The early signs are not encouraging.
Although the law took effect on Sunday, President Biden fecklessly announced preemptively that he would not enforce the ban triggered by the absence of a sale of TikTok to a U.S. owner, effectively leaving the decision to Trump. (He did this as he pulled the stunt of claiming that the Equal Rights Amendment was now the law of the land.)
Over the weekend, Trump announced on Truth Social that he “will issue an executive order on Monday to extend the period of time before the law’s prohibitions take effect, so that we can make a deal to protect our national security.”
It appears that Trump will invoke a provision of the forced divestiture law allowing for a one-time, 90-day extension of its enforcement by the president. But the law is clear. The 90-day extension only applies if there is “significant” progress toward a sale and “there are in place the relevant binding legal agreements to enable execution of such qualified divestiture” during the extension period. Essentially, the extension option was inserted to provide the players some more room if a deal was basically in place and the parties needed more time to hammer out the details. It isn’t satisfied by simply pointing to somebody who has said they want to buy TikTok, as investor Kevin O’Leary has done by offering $20 billion.
In reality, every report on ByteDance in recent months points to one conclusion: that the Chinese company’s leaders spent every resource at their disposal litigating and propagandizing rather than engaging with any of the several prospective American buyers who have expressed interest in purchasing TikTok. It’s not just that there hasn’t been significant progress toward a deal; ByteDance, acting under orders from China’s government, has declined to entertain any spin-off talks. By vowing to shut down rather than sell the app for what would likely be tens of billions of dollars, ByteDance is giving away the game: They are primarily interested in maintaining Chinese control over the app.
Even if some legal argument or report about sale talks can be mustered to try to justify the waiver, the law is explicit that it is only a one-time option. This is why Trump will be under pressure to consider issuing a more expansive executive order directing his administration not to enforce the law or certifying, wrongly, that the company has met requirements that would prevent the ban from being triggered.
Any of this would be a grave mistake. The outcome here is binary: Washington will either bow to Beijing’s intransigence or demonstrate that it has the will to defend our nation’s sovereignty from our primary geopolitical foe, even if American teenagers — and other TikTok users — get very upset. Beijing surely knows that it is locked into a war of wills with Congress, which has staked out admirably hawkish ground on meeting the challenge posed by Beijing’s malign actions.
Above all, by refusing to enforce the law in order to advance a different policy preference, as Barack Obama did on immigration and health care, Trump would be instantly disregarding the oath he takes on Monday afternoon to “faithfully execute” his office and “preserve, protect and defend the Constitution of the United States.”
Trump should follow the law passed with overwhelming bipartisan support in Congress, and upheld by the Supreme Court, which rightly deferred to the extraordinary congressional concern about the threat posed by TikTok’s data collection.
Then, he should lean on China’s government to bless a sale of TikTok. Trump must see through the lies of TikTok executives about their independence from the Chinese government, which is why the matter came up during his call with Xi Jinping last week. TikTok’s fate will be decided in the Chinese leadership’s Zhongnanhai compound, not at the U.S. corporate subsidiary’s California offices. This should be considered the first item on his agenda for a series of overarching negotiations with China.
Besides, enforcing the ban until ByteDance makes progress on a deal would not prevent TikTok from coming back online once divestiture has occurred — this weekend’s reversal shows that the site can easily turn itself off and then back on again — and in the event there is no deal, it’s hard to believe that a U.S. company can’t come up with its own popular, addictive platform for sharing short videos.
One reason for Trump’s turnabout on TikTok — he once was pushing to ban it — is that he welcomed how TikTok helped spread his message during the campaign. But Trump will presumably have just as impressive a viral content game on a divested TikTok or some other platform — it’s pretty well established now that he’s good at social media.
Failing to respect the law, by contrast, would preserve the alarming status quo under which China’s security services have the legal prerogative to access TikTok’s massive data set of information on 170 million Americans.
Even worse, it would demonstrate that America and, in the right circumstance, even President Trump are unprepared to turn the page on the heedless globalization that has had U.S. leaders welcoming a hostile Leninist dictatorship as a good-faith participant in our markets and society. Trump’s pick for secretary of state, Marco Rubio, put it best last week when he said that this status quo is now a “weapon” that our adversaries are wielding against us. If the new president is serious about disarming them, he needs to stay the course on TikTok — and compel Beijing to divest.