“Across Washington, China hawks are trying to draw a hard line against any plan that would let ByteDance maintain a degree of control of the company or insight into its underlying technology, both of which are banned by the bipartisan 2024 law passed by Congress.
But Trump is already violating that law by allowing the app to stay online. And if his promised deal goes through, Congress has almost no leverage to stop it: The law leaves final approval in the president’s hands, and lawmakers can’t take him to court even if he violates its clear meaning.
“Congress does not have standing to sue,” said Alan Rozenshtein, a professor at the University of Minnesota Law School. He said a lawmaker can typically only file suit if they’re personally harmed by a violation.
An illegal TikTok-Oracle deal blessed by Trump would immediately join a host of White House actions that flout settled law. The Trump administration is being sued for breaking laws around deportations, civil-service protections, federal spending rules, government data-sharing and more — all of which are now playing out in federal courts across the country.
When it comes to TikTok, however, even the courts offer little recourse to enforce the 2024 law, which the Supreme Court unanimously affirmed in January.
The law requires a “qualified divestiture” of TikTok — an arrangement where ByteDance gives up all control of both the company and the powerful algorithm that runs TikTok’s video-sharing service. It can retain at most a 20 percent financial stake in the company.
The Oracle deal under discussion — a modification of a prior arrangement between TikTok and Oracle, where U.S. user data was stored on Oracle-run servers while ByteDance retained a role in TikTok’s operations — would likely flunk one or more of those tests. But it’s Trump who is ultimately empowered to declare an agreement acceptable.
“The president gets to decide what constitutes a qualified divestiture,” said Michael Sobolik, a former national security staffer for Sen. Ted Cruz (R-Texas) and senior fellow at the conservative Hudson Institute. “That is completely up to him, even though the contours of what needs to happen in a divestiture are spelled out in the law.”
China hawks on Capitol Hill are rattling their sabers at Trump, warning against any deal that keeps ByteDance in the room.
“The law is clear,” Rep. John Moolenaar (R-Mich.), chair of the House Select Committee on China, wrote on Tuesday. “Any deal must eliminate Chinese influence and control over the app to safeguard our interests.”
But Moolenaar and other lawmakers have few options to stop Trump once he decides to proceed. And lawyers say Washington’s sense of powerlessness is compounded by the fact that the White House is already ignoring the TikTok law.”
“The idea that one type of lawyer can meet all legal needs is as outdated now as it was in 1935. Law schools and the legal academy must adjust accordingly.”
Trump fires top military lawyers so they aren’t roadblocks to anything Trump wants to do. But, the lawyers are supposed to be roadblocks! They are there to help the military follow the law and the Constitution.
“When Trump imposed tariffs during his first term, he cited authority under other laws, like the Trade Act of 1974 and the Trade Expansion Act of 1962. At one point he threatened to invoke the IEEPA to impose tariffs on Mexican goods, but he never followed through, perhaps amid concern it would have been seen as legally dubious.
That’s because the IEEPA is typically used to impose sanctions — not tariffs — on other countries.
But Trump’s decision to use the IEEPA this time, when he’s aggressively flexing his executive authority, may be no accident: Unlike other trade laws, the IEEPA has the fewest procedural requirements and safeguards.
It gives the president the power to regulate or prohibit a broad swath of economic activity in order “to deal with any unusual and extraordinary threat” that is based largely outside the United States and concerns “the national security, foreign policy, or economy of the United States.” In the executive orders that announced the tariffs on Canada, Mexico and China, Trump invoked the opioid crisis, as well as illegal immigration from Canada and Mexico.”
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“No president has ever used the IEEPA to impose tariffs before. In fact, the IEEPA was passed as part of a broader effort by Congress in the 1970s to limit the president’s ability to exercise emergency economic powers. The framework ultimately created, however, completely fails to rein in the president, according to Timothy Meyer, a law professor and expert on international trade law. And Trump is taking advantage of that failure by pushing beyond what the Constitution intended.
“This strikes me as unconstitutional,” Meyer told me. “It’s very difficult to see how the framers would’ve thought that it was constitutional for the president to simply have the power on the drop of a hat to impose an across-the-board 25 percent tariff on our major trading partners.”
The Constitution gives Congress the authority to “lay and collect Taxes, Duties, Imposts and Excises.” Between Trump’s tariffs and his unilateral effort to halt federal spending, he has now effectively claimed that he has both taxing and spending authority — a government all his own. Congress barely even needs to exist in this framework.”
“The International Emergency Economic Powers Act, passed in 1977, grants the president broad authority over economic transactions, and a wide range of abilities to deal with “any unusual and extraordinary threat,” stemming in whole or in part from foreign sources.
Presidents, including Trump’s predecessor Joe Biden, have used the law to impose economic sanctions on other countries, including on Russia after it launched its 2022 war on Ukraine.
But the closest a president has come to citing a national emergency to impose tariffs was when President Richard Nixon used a different law — the Trading with the Enemy Act of 1917 — to levy a temporary universal tariff on all imports in 1971.
Trump justified his new tariffs Saturday by pointing to “the major threat of illegal aliens and deadly drugs killing our Citizens, including fentanyl,” which he claims Mexico, Canada and China are not doing enough to keep from coming into the United States.
But Bill Reinsch, a former Commerce Department official now at the Center for Strategic and International Studies, said Trump’s use of IEEPA to justify his trade actions “doesn’t really pass the red-face test,” setting the stage for a company or trade association whose members have been harmed by the action to sue.
“The question will be, can you find a judge who will write an injunction to stay the tariffs from going into effect,” Reinsch said. “And my prediction is that will be hard, because you’re asking a federal judge to essentially say, ‘I know more than the President does about what an emergency is.’ And I think judges are going to be reluctant to do that.”
That won’t stop a lawsuit from proceeding, most likely all the way to the Supreme Court, Reinsch said, but it could be years before there is a conclusion to the legal battle.
“The courts have historically upheld the president’s power to take emergency actions, especially when they are related to national security. But one important question is whether they will uphold the use of tariffs. In the past, [IEEPA] has only been used to impose sanctions,” said Tim Brightbill, a trade attorney at the law firm Wiley Rein in Washington, DC.
“While it is possible that companies or industry groups would seek an injunction, they probably face an uphill battle blocking the new tariffs,” Brightbill said.”
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“the U.S. effectively killed the WTO Appellate Body during Trump’s first term by blocking the appointment of new judges, leaving it without the ability to adjudicate disputes. And there’s little to suggest the Trump administration would abide by a WTO ruling even if the organization were able to issue one.”
“For over a week now, Donald Trump and the Justice Department have been flouting the law meant to shut down TikTok. The legislation was unambiguous and was passed by large, bipartisan majorities in both houses of Congress; it was affirmed by a unanimous Supreme Court less than two weeks ago. And for the most part, both Republicans and Democrats have sat quietly by as Trump has waved away their previously stated concerns, as well as the constitutional powers and institutional prerogatives of Capitol Hill.
The TikTok ban was supposed to be a critical national security response to the threat posed by the Chinese government and its control over an app with 170 million users in our country. Shortly before the law went into effect, Sen. Tom Cotton (R-Ark.) said in a speech on the Senate floor that “without question, TikTok’s lethal algorithm has cost the lives of many American kids.” He announced that there would “be no extensions, no concessions and no compromises for TikTok.””
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“On his first day in office, Trump declared that he would effectively ignore the law, and so TikTok lives. He appears to have engineered a short-term bailout for TikTok — whose app should have gone dark in the U.S. by now — after a wealthy donor supported the move and amid some belief that TikTok helped him get reelected.”
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“he has created a precedent — that he can direct his own administration to ignore laws that he believes are politically or personally unhelpful to him — that ought to trouble Republicans and Democrats alike.
To start, there is no real question about the state of the law on paper: Trump is breaking it.”
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“His executive order was little more than a public declaration that he would ignore the law on the theory that it interfered with his ability “to assess the national security and foreign policy implications.” Not only did he direct the attorney general not to enforce the law for 75 days, he also instructed the Justice Department “to issue a letter” to each TikTok service provider “stating that there has been no violation of the statute and that there is no liability for any conduct” during the 75-day period.
Some Republican China hawks, like Cotton and Missouri Sen. Josh Hawley, had taken the position that state attorneys general could enforce the law anyway, but Trump unilaterally decided that they were wrong about that too. His executive order purports to prevent “attempted enforcement by the States or private parties” and to grant the Justice Department “exclusive authority to enforce the law.”
This is generally not how executive orders are supposed to work. They are not supposed to be vehicles for the president to pick and choose which laws passed by Congress he wants to enforce — or which ones he wants to change by fiat.”
“The law, Assembly Bill 2839 makes it illegal for an individual to produce “knowingly distributing an advertisement or other election communication, as defined, that contains certain materially deceptive content,” within 120 days of an election and up to 60 days after. Affected candidates can file for a civil action enjoining distribution of the media, and seek damages from its creator.”
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“content creator Christopher Kohls filed a lawsuit arguing the law was overbroad, violating his First Amendment rights to make parody content. Kohls has a YouTube channel with more than 300,000 subscribers, and his videos often consist of political parodies featuring political candidates seemingly mocking themselves.”
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“Judge John A. Mendes, a judge on the United States District Court for the Eastern District of California, sided with Kohls, ruling that the law doesn’t pass constitutional muster because it does not use “the least restrictive means available for advancing the State’s interest.”
“Counter speech is a less restrictive alternative to prohibiting videos such as those posted by Plaintiff, no matter how offensive or inappropriate someone may find them,” Mendez’s opinion reads. “AB 2839 is unconstitutional because it lacks the narrow tailoring and least restrictive alternative that a content based law requires under strict scrutiny.”
Mendez’s ruling argues that the law, which is aimed at cracking down on “deepfakes” and other forms of false speech intended at misrepresenting an opponent’s views and actions, ends up making illegal a much wider range of speech than these specific statements.
“While Defendants attempt to analogize AB 2839 to a restriction on defamatory statements, the statute itself does not use the word ‘defamation’ and by its own definition, extends beyond the legal standard for defamation to include any false or materially deceptive content that is ‘reasonably likely’ to harm the ‘reputation or electoral prospects of a candidate.'”
While the law did contain a provision exempting parody content that contains a disclosure, the requirement was onerous, mandating that it be “no smaller than the largest font size of other text appearing in the visual media.”
Just one part of the law was found to pass constitutional muster—a requirement audio-only media be disclosed at the beginning at the message, and every two minutes during the duration of the content.
“While the Court gives substantial weight to the fact that the California Legislature has a ‘compelling interest in protecting free and fair elections,’ this interest must be served by narrowly tailored ends.” Mendez writes. “Supreme Court precedent illuminates that while a wellfounded fear of a digitally manipulated media landscape may be justified, this fear does not give legislators unbridled license to bulldoze over the longstanding tradition of critique, parody, and satire protected by the First Amendment.””