Court watchers are split on how receptive the Supreme Court justices could be to President-elect Donald Trump’s “unorthodox” request to delay implementing a law that would force Chinese-owned TikTok to divest by Jan. 19 — one day before he takes office.
Mr. Trump suggested in a court filing that he could strike a deal that would protect the company’s free speech and the nation’s security interests in the monumental litigation, putting himself at the center of the court’s most high profile legal battle of the term, which the justices will consider on Friday.
“If the Court follows Trump’s proposed course of action, then it will probably do so as a matter of policy and not of constitutional law. That is, I’m not sold on Trump’s executive powers argument,” said Adam Feldman, Supreme Court scholar and creator of the Empirical SCOTUS blog. “There is also little support for giving the President deference in the area of First Amendment unless there is a clear security risk as well.”
Josh Blackman, a professor at South Texas College of Law, said the president-elect is relying on his deal-making powers, not law, in his request to the court.
“I think the brief is unorthodox, but may have some effect in these fairly unique circumstances,” Mr. Blackman said.
In a court filing on Dec. 27, Mr. Trump told the justices that he’s not filing on behalf of either party — but would like to see the law’s implementation date delayed so he can negotiate a deal.
His attorney — D. John Sauer, who is nominated to be U.S. solicitor general — said in the brief that the “case presents an unprecedented, novel, and difficult tension between free-speech rights on one side, and foreign policy and national-security concerns on the other.”
“As the incoming Chief Executive, President Trump has a particularly powerful interest in and responsibility for those national-security and foreign-policy questions, and he is the right constitutional actor to resolve the dispute through political means,” the filing reads.
Mr. Trump has more than 14 million followers on TikTok and has credited the platform with helping him win support among young voters.
His position on TikTok has changed. Mr. Trump initially recognized it as a national security threat, but has since created an account and softened his stance. In a post on Truth Social in September, he said he would “save TikTok in America.”
Friday’s court hearing involves TikTok’s appeal to the Supreme Court, asking the justices to block a law from taking effect that would force it to divest from its foreign ownership by Jan. 19 or cease domestic operations in the United States. A group of TikTok users have also challenged the legislation.
TikTok, which is owned by the Chinese tech firm ByteDance, claims the law violates its First Amendment rights. The Department of Justice has argued that the foreign-owned social media platform does not have free speech rights — and even if it did, those are outweighed by national security concerns.
TikTok says roughly 170 million Americans use the popular video-sharing platform.
Mr. Trump’s argument, though, could be an exit ramp for the justices from deciding the thorny First Amendment dispute — at least for now.
Mr. Feldman said if the justices are wanting to approach this more cautiously and in a less rushed manner, this could be their “potential out.” The high court expedited the case — deciding to hear it and scheduling oral arguments within a two week time frame. The justices usually take months between granting an appeal and scheduling oral arguments.
“As a matter of policy then, this would give the Court an opportunity to have a wait and see approach where they would not have to wade into the First Amendment argument which is murky and could instead decide whether or not to get involved with this at a later date which is consistent with the Court’s approach in other areas,” Mr. Feldman said.
The legislation, approved by Congress and signed by President Biden in April, won bipartisan support from lawmakers who say TikTok poses a national security threat by collecting user data. The concern is that China’s communist government could use that data.
The Justice Department says TikTok has received direction about content on its platform from the Chinese government.
TikTok has lost in lower court, and the justices refused to issue an injunction halting the law from taking effect, putting off that decision until after they hear from the parties.
Ashley Gorski, senior staff attorney with the American Civil Liberties Union’s National Security Project, said the change of administration may make all the difference in the fate of the law.
“President Trump could push Congress to repeal the ban, or he might direct the Department of Justice not to enforce it,” Ms. Gorski said.
Ilya Shapiro, director of constitutional studies, said Mr. Trump’s brief can be seen as a request for a temporary restraining order on the law or for Congress to potentially rewrite its effective date.
“I doubt the Court will want to be seen as doing either,” he said.
Mr. Shapiro said the expedited nature of the case suggests the justices are wanting to resolve it before Jan. 19.
“The Court frowns on reversals of legal position based on changes of administration and this would seem to be even worse from that perspective,” Mr. Shapiro said.
The justices, he noted, could side with the Biden Justice Department but delay the implementation of the court’s mandate to give Mr. Trump’s team a chance to negotiate with TikTok and ByteDance — or to petition for a rehearing once Mr. Trump’s Justice Department takes over on Jan. 20.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.