Trump has no plausible constitutional rationale for refusing to enforce the TikTok law, but if Congress won’t take action, the Chinese cyber-espionage op will persist.
For the third time, President Trump has lawlessly issued a 90-day reprieve on enforcement of the congressionally enacted, Supreme Court-approved 2024 law mandating that Tik-Tok be shut down unless it is divested of China-controlled ownership.
The statute’s 270-day deadline for divestment fell on January 19, 2025, the day before Trump’s inauguration.
As I explained at the time, the president’s first 90-day extension, just after taking office, was illegal. The statute — the Protecting Americans From Foreign Adversary Controlled Applications Act — authorizes the president to grant a one time only 90-day deadline extension, but only if the president certifies that (a) a qualified divestiture (i.e., a sale to a buyer uncontrolled by China) has been identified, (b) the deal is imminent, and (c) “binding legal agreements” are in place to enable the divestiture.
Trump could not make those certifications when he first extended the deadline. He has never been able to make them; and that’s now beside the point because, even if he could certify, the statute would not authorize any further extensions. Ergo, the additional extensions are also illegal.
It was Republicans that led the worthy bipartisan effort to enact the TikTok law. And only Congress — both chambers of which are in GOP control — is in a position to do anything about the Trump administration’s refusal to enforce the law. The statute empowers only the Justice Department to enforce its terms by civil actions to impose weighty financial penalties on entities in violation. Here, that would be Byte Dance, the Chinese tech company that owns TikTok. Attorney General Pamela Bondi will not enforce the statute, however, notwithstanding the crystal clarity of its terms, because the president wants to play deal maker rather than execute the laws faithfully. The statute does not provide a private right of action, so it cannot be enforced in court unless the Justice Department does its job.
Republicans were adamant that the TikTok law was imperative because Chinese companies are subject to China’s laws, which require them to be fully cooperative with the Communist Chinese regime, led by Xi Jinping. As the unanimous Supreme Court put it in upholding the law on January 17, 2025:
[T]he 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.
Trump has decided to ignore all this because (a) he thinks TikTok helped his 2024 campaign, and (b) notwithstanding his erratic tariff impositions, his ill-advised trade war with China, and China’s hostility to the United States, the president believes he has a fabulous relationship with Xi and can cut a deal that somehow protects the nation from China’s cyber-espionage yet simultaneously mollifies Beijing (which, despite all the furor, has ardently fought divestment . . . which is a good indication that TikTok in an intelligence operation of immense value to the Communist regime). He is of course wrong about this, but that should be irrelevant because we’re supposed to be a nation of laws, not presidential whims.
The president is confident he has the leeway to violate the law this way because Republicans in Congress are too cowed to object. Sadly, he seems to be right about that.
All congressional Republicans carped about for four years was Biden’s lawlessness — the illegal immigration parole scheme, the refusal to enforce immigration and border security laws, the illegal eviction moratorium, the illegal student loan forgiveness, and so on.
All true . . . but so what? Congress’s duty is to vindicate its institutional prerogatives and check executive abuses of power because that is what the Constitution calls for — and calls for regardless of which party holds the White House. If the Republican-controlled Congress won’t hold hearings and won’t publicly demand that the Republican president abide by the law — under circumstances in which Trump has no plausible constitutional rationale for refusing to enforce the law — then why would anyone care what they say when the next Democratic president refuses to execute the laws and makes up his own laws as he goes along? Why would anyone give them the time of day when the next Democratic president fails to treat China’s provocations seriously?
Night and day, Democrats promote the theme they will run on in the 2026 midterms and the 2028 presidential election: Trump is a lawless dictator. And night and day, Republicans abet Democrats by laying the groundwork for the next Democratic president to be a lawless dictator.