President Donald Trump has an expansive, even extreme, view of the powers of the presidency. The president seems to delight in pushing boundaries. He does not worry about taking power from Congress. The TikTok saga perfectly illustrates Trump’s views on the powers of his office.
Last week, Trump said yet another extension would be forthcoming regarding the deadline for meeting the terms of the 2024 legislation requiring that the social media platform be separated from its Chinese owner, ByteDance, or be banned in the United States. The TikTok legislation, “Protecting Americans from Foreign Adversary Controlled Applications Act,” was passed during former President Joe Biden’s administration. The bill was enacted with very large bipartisan support. Congress was concerned that the TikTok app was a tool of the Chinese intelligence services, and Congress was worried that China was using TikTok to perversely influence U.S. public opinion on matters of strategic importance to America.
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But Trump keeps extending the deadline for divestiture to a U.S. entity or closure. He originally extended it in January, and he again extended it in April and June of this year. What is going on?
There is credible evidence that China is using TikTok against America. Classified briefings were provided to members of Congress in the run-up to the legislation’s passage. Through the app, China has access to the viewing habits of around 170 million Americans. China knows details about the personal lives of over half of the U.S. population. Persuasively, the Supreme Court upheld the constitutionality of the ban on grounds of national security. TikTok poses a clear danger to the country.
But Trump is in no hurry to shut down TikTok. The app is part of the broad negotiation between the U.S. and China over economic and national security issues, including tariffs. China has leverage over the TikTok matter because it must approve a U.S. buyer, or the app will be shut down by China. Trump sees economic value in TikTok. He does not want that value destroyed by China or an executive branch decision to close it.
Remedies are limited to compelling Trump to enforce the clear language of the 2024 law concerning TikTok. Only members of Congress have “standing” to take legal action against Trump on the matter. A party has standing in a legal dispute when its interests are directly involved and when its interests are harmed. Congressional power is diminished by Trump’s extensions. But Congress has yet to challenge Trump on TikTok. Equally important, the Supreme Court would probably see the TikTok issue as a political question to be resolved by the two parties with fundamental interests in the matter, Trump and Congress. The Supreme Court would be reluctant to become involved.
In addition, under the concept of prosecutorial discretion, Trump would have a strong case in asserting his unilateral power. Under the U.S. legal system, the president can determine which laws should be enforced. Former President Barack Obama used his powers of prosecutorial discretion often on matters involving migration.
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Seemingly, the most effective strategy to persuade Trump to enforce the law is through the court of public opinion. Most Americans view China as an adversary or even an enemy of the U.S. Members of Congress who want TikTok shut down should hold public hearings on why the app is a national security threat.
These are long-shot strategies to force Trump to obey the law, but something must be done to bring this important national security matter before the public. The nation cannot wait for a broad agreement with China for TikTok to be shuttered or sold.