Despite my own feelings on the ban, this kind of royal court politics is the worst potential outcome. Disregarding a law that was passed by a bipartisan majority, signed into law by the president and ruled on by the supreme courts feels like the start of a very dangerous path. Not to mention the prosecutorial discretion may be creating massive liability that the new administration could use to extract favors from some of our largest tech companies.
>Disregarding a law that was passed by a bipartisan majority, signed into law by the president and ruled on by the supreme courts feels like the start of a very dangerous path
I don't understand why this is not the primary takeaway. Regardless of the specifics of this issue, it is objectively a huge power grab for a president to vow to not enforce a law that had bipartisan approval of both the legislative and judiciary branches.
> Regardless of the specifics of this issue, it is objectively a huge power grab for a president to vow to not enforce a law that had bipartisan approval of both the legislative and judiciary branches.
Isn't that the road we've been walking down for a while now with the proliferation of executive orders?
I'm not a fan of this outcome either, but it doesn't strike me as a revolutionary departure from current norms.
Executive orders have historically been a way to get things done when the law is ambiguous. It has not, as far as I know, been used to try to directly contradict existing law that has been upheld by the judiciary branch. I don't even know how that would be legal - if it were then it upends literally the entire basis of our government.
We're essentially saying the president is a dictator - which I know is what the current president wants, but I sure hope the rest of the country doesn't.
> Executive orders have historically been a way to get things done when the law is ambiguous. It has not, as far as I know, been used to try to directly contradict existing law that
Isn't this the case with the federal government not enforcing its own marijuana sale, possession, and use laws for at least a decade now (in states that have legalized or decriminalized it), across several presidents from both parties? I don't think it's ambiguous what's supposed to happen legally when it comes to Schedule I controlled substances.
The federal government deciding to bring charges or not are a completely different matter from an executive order. If you can point to an executive order that "legalizes" marijuana when there are laws explicitly making it illegal, cite away. It would be news to me.
I think this is different. I generally feel like executive orders are 1) used to take some kind of affirmative step that the dysfunction in congress is blocking 2) have some level of defensible legal theory. This feels like the opposite. My understanding of the 90 day extension is that it's supposed to be there to allow a deal to close, but there is no evidence I've seen of a deal being worked on so the legal theory seems to be really flimsy. Disregarding a law, while not unprecedented, is not a great sign given some of the incoming administration statements on a ton of other topics.
>My understanding of the 90 day extension is that it's supposed to be there to allow a deal to close
It is also important to recognize that Trump isn't just talking about invoking the 90 day extension. He is promising companies they won't be held responsible for the fines they should be accruing for violating the law before he even takes office.
Biden is still the president and he’s not enforcing the law. It’s not clear to me that the president can’t grant an extension later once all the statutory requirements are met. What’s the difference between one day and say 10 days?
Putting that aside, the legal theory here—where an exception is there for this purpose and we’re quibbling about its application—is nowhere close to “flimsy” when it comes to constraints on executive prosecutorial discretion.
Biden's ability to enforce the law seems to be pretty constrained given the amount of time left in his term. Like asking Garland to start a prosecution isn't exactly practical. I think it's also worth noting that TikTok was complying with the ban until they were given a signal by the incoming administration that they weren't planning on enforcing it.
The text of the law isn't totally unambiguous, but I still think it's quite clear that the conditions where a 90 day extension could be granted aren't being met, so we'll have to agree to disagree on how flimsy it is.
Because not all presidents have served for two full terms. Examining things while ignoring the time period over which they happened does not a meaningful analysis make.
It depends on what happens after the litigation over it. It will be a revolutionary departure if the law continues to not be enforced, after the courts demand it be, if they do.
Couldn't agree more. Each incoming administration since Bush has only expanded executive power, despite decrying its usage in the admin they replaced. This is a very predictable outcome even when looking ahead from 20 years ago, and its easy to see where things will stand in another 20 years.
The current norm that comes to mind is Biden trying to cancel student debt, to which the SC said no.
It's nothing new in that it's something that should have been decided by Congress, not the executive. But I think it's new for the executive to ignore the SC like that. Any counter examples?
This should be a lesson: most prosecution and enforcement is discretionary.
This isn't a power grab. That already happened when the Supreme Court invented out of thin air the idea of presidential immunity. There was no basis for that.
Supreme Court justices are political operatives and the conservative supermajority has gone on a spree of overturning precedent and inventing law on a scale not seen since Marbury v Madison.
“Historical tradition” as a legal doctrine is completely invented. “Major Questions Doctrine” is a massive power grab over the other two branches. Presidential immunity is simply the “unitary executive” doctrine, also completely invented.
The law has a provision permitting the President to grant 90 day exceptions. Trump has indicated he'll sign one tomorrow. This isn't going around the law, it's just the law as written. We can debate whether the law was good or bad, but this is an outcome the law directly supports.
Except it doesn't sound like he's satisfied any of the criteria, unless he's promising to buy it himself:
(A) a path to executing a qualified divestiture has
been identified with respect to such application;
(B) evidence of significant progress toward executing
such qualified divestiture has been produced with respect
to such application; and
(C) there are in place the relevant binding legal agree-
ments to enable execution of such qualified divestiture
during the period of such extension
His administration will lie, because TikTok has made it clear they will not divest in order to stay in the USA.
But so what? His administration, and he himself, lied about a bunch of stuff during his previous term, and what happened? Nothing. Never tried, never convicted (he was impeached, but so what?)
We do not have a mechanism for dealing with a president or administration that is willing to just lie. Even if the SCOTUS were to determine that the administration did in fact lie about certifying those things, so what? Nothing will happen.
(A) is intentionally vague and deferential. The possibility of a Trump Presidency was in everyone’s mind in drafting; he’s not a guy you tell what to do, he’s a guy you give discretion to with an opportunity to blame unsatisfactorily deferential third parties.
It says the conditions of the extension must be certified to Congress. That means the deal is identified, has been significantly executed, and legally binding. I doubt Trump has any of that, which is probably why he’s resorting to an executive order.
More worryingly he stated in his Truth social post that he’s seeking 50% ownership. That doesn’t meet the definition of divestiture in this bill, since China would still effectively steer operations, including content recommendations.
He's not resorting to an executive order to ignore the law. He's using the loophole in the law that allows him to grant a 1-time 90 day lift of the ban, given that he certifies that certain conditions have been met.
The conditions have not been met, but he will lie and state that to his satisfaction, they have. Nothing will happen to challenge that except some noise from a couple of Democratic senators.
Sure, the loophole is a part of the law, as I (and others) stated. Congress passed the law, which included a simple and easy way for a president to suspend it once of 90 day, with weak and unenforceable requirements to invoke it. Given that this is an unusual clause to have in a law, I feel comfortable calling it a loophole.
That's not a loophole. It was intentionally designed the way it's been written to be used the way Trump is using it--to give the President leverage and the ability to save face for Beijing.
It's a potentially successful power grab because the law isn't widely supported by the populace. Trivial to say "those eggheads can pass what they like, I will protect you from them"
There is no way the President can commit that these services will not accrue massive fines throughout his non-enforcement period.
And actually your read is wrong: the President does have an obligation to enforce laws, it's just in practice there are all sorts of ways one can effectively bury this obligation under claims of different prioritization. They are not really allowed to come out and just say: "I am choosing not to enforce this law because I disagree with it."
> the President does have an obligation to enforce laws
This is only true as far as other people are ready to keep the president in check. I only have the surface knowledge of US politics, but from the outside, it seems like the American institutions that were supposed to balance the executive power are all being quite successfully sabotaged.
The Executive Branch (President, White House) has a responsibility to execute the law as legislated by the Legislative Branch (Congress) and judged by the Judicial Branch (Supreme Court) if applicable.
Trump is citing House Resolution 8038[1], Division D, Section 2, subsection A, paragraph 3[2] which states (emphasis mine):
>(3) EXTENSION.—With respect to a foreign adversary controlled application, the President may grant a 1-time extension of not more than 90 days with respect to the date on which this subsection would otherwise apply to such application pursuant to paragraph (2), if the President certifies to Congress that—
>(A) a path to executing a qualified divestiture has been identified with respect to such application;
>(B) evidence of significant progress toward executing such qualified divestiture has been produced with respect to such application; and
>(C) there are in place the relevant binding legal agreements to enable execution of such qualified divestiture during the period of such extension.
In plain English, this means Trump once he is President will have authority to order a one-time up-to 90-day extension to enforcing the ban if TikTok can present evidence that they are in the process of selling to an American entity.
If TikTok cannot present the evidence or they still do not complete a sale within the 90-day extension, the ban will apply and must be enforced by the President.
As the law in question was passed by Congress and signed into law by the President (Biden), the President (Biden and Trump) cannot overrule or otherwise refuse the law with an Executive Order. The President must enforce and act within the powers vested in him by the law.
It is questionable if Trump's claim of not penalizing violators of the law prior to an approved 90-day extension is legal; the law allows no such powers to the President.
> It is questionable if Trump's claim of not penalizing violators of the law prior to an approved 90-day extension is legal; the law allows no such powers to the President.
The president has the power to pardon, which could be interpreted in that way.
I'm no legal scholar, but I think offering the pardon up front with the intention of circumventing the law would itself have been a crime up until the recent July supreme court ruling that now appears to make it perfectly legal: absolute immunity for all official acts including pardons.
Yes, the legal question was decided last year by the Supreme Court (and it will work in all Presidents' favors going forward, Trump included). The question of duty however lies with Congress. The Executive Branch is tasked with executing the laws passed by Congress, and Congress always has the option of impeaching a President who refuses his duty to execute and enforce the law.
>To be impeached, a President or other federal official must have committed one of the violations described by the Constitution as “treason, bribery, or other high crimes and misdemeanors.” But history shows that if a President is to be impeached, the biggest factor may be political will — whether members of a President’s own party are willing to turn against him, and whether enough members of Congress believe that trying to remove the President is worth the risk of losing popular support.
>To impeach an official, the House of Representatives must pass articles of impeachment, which formally accuse the President of misbehavior. Once the House votes to impeach, the Senate must hold a trial to decide if the President should be removed from office.
So no, Trump (nor Clinton nor Johnson for that matter) was/were not impeached. They were all acquitted of the charges presented and even foregoing that the Senate ultimately lacked the political will to impeach them.
They were all tried for impeachment but they were not "impeached". To be impeached means they were found guilty of the charges (article(s) of impeachment) levied. It's like calling someone acquitted of murder a murderer, that's not how this works at all.
And yet the paragraphs I cited from the very article you keep linking dispute that statement.
Again, I cite:
>To be impeached, a President or other federal official must have committed one of the violations described by the Constitution as “treason, bribery, or other high crimes and misdemeanors.” But history shows that if a President is to be impeached, the biggest factor may be political will — whether members of a President’s own party are willing to turn against him, and whether enough members of Congress believe that trying to remove the President is worth the risk of losing popular support.
>To impeach an official, the House of Representatives must pass articles of impeachment, which formally accuse the President of misbehavior. Once the House votes to impeach, the Senate must hold a trial to decide if the President should be removed from office.
Further, citing Clause 6 of Article 1 from the Constitution[1] (emphasis mine):
>The Senate shall have the sole Power to try all Impeachments.
A President (or former President) is only "impeached" if he is found guilty by the Senate of the charge(s) levied against him by the House. To date that has never occured, all impeachment trials against a President to date have concluded in acquittals.
Factually, there has never been an impeached President in American history.
The use of the term "impeached" to mean a President tried for impeachment is confusing and misleading, perhaps deliberately so given the individuals concerned in all the impeachment trials.
"The most recent was the second impeachment of former President Donald Trump."
"What does impeachment mean?
Impeachment means charging a public official with misconduct. Like in the justice system, charges alone do not lead to consequences. Instead, there is a trial, during which the official is convicted or acquitted."
While there have been demands for the impeachment of most presidents, only three — Andrew Johnson in 1868, Bill Clinton in 1999 and Donald Trump in 2019— have actually been impeached. A second impeachment of Donald Trump was adopted, making him the first US President to be impeached twice.
I reiterate that "impeached" means to be convicted of charges levied in (an) article(s) of impeachment.
Article 2, Section 2, Clause 1[1] of the Constitution (also cited in your links) states (emphasis mine):
>[The President] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
For there to even be a question of a presidential pardon applying to impeachments that necessitated such a clause, being impeached implies being convicted. The Justice Department considers pardons without convictions as "highly unusual"[2].
I thus reiterate: There has never been an impeached President to date, and the use of the term "impeached" to mean a President merely tried for impeachment is very misleading. Again, you don't call someone merely tried for (let alone acquitted of) murder a murderer.
>In plain English, this means Trump once he is President will have authority to order a one-time up-to 90-day extension to enforcing the ban if TikTok can present evidence that they are in the process of selling to an American entity.
There is zero chance he can satisfy A, B, and C tomorrow. Zero.
I agree, the realistic chance of TikTok providing evidence of an active and ongoing sale process when they hadn't entertained even the mere thought of a sale is astronomically low.
Then again, reality can be weird sometimes. Never say never until the fat lady sings.
Why are they not able to not enforce the law? The right for law enforcing entities and persons to not enforce the law due to personal discretion has been upheld many times in the past. Cops don't have to do it, prosecutors don't have to do it, not even judges have to do it although they almost always do because otherwise it creates friction between prosecution and the judge and the judge is likely to get booted for it eventually because successful prosecutions is how law enforcement and courts earn most of their money and unsuccessful arrests and prosecutions is how they lose money. I don't see how or why the executive branch is under any obligations to enforce any laws, feds don't often enforce marijuana laws in legal states despite being federally illegal still is an easy example.
The only real check against the president/executive branch is the legislative branch having the power to impeach the president and get them replaced, or by legislatively dismantling or changing the internal rules of a department. They lose their jobs, but aren't liable for anything or breaking any laws I know of. Just the same as states can boot out judges or prosecutors if they don't like how they operate, and police departments can fire officers if they don't like how they operate. At no point did cops or prosecutors or judges break the law by not enforcing the law, they merely piss off the state that is funding them and now losing additional money due to lack of enforcement and prosecution, and I don't know how the president or executive branch is any different.
Go look it up instead of having me explain it to you. You're just verbosely asserting your opinion, and at least in the US, your opinion does not map to how the law actually works.
US Constitution Section 2 Article 3: "[The President]... shall take Care that the Laws be faithfully executed..."
So when past presidents have said they wont prosecute marijuana laws, what was that?
Your argument reminds me of the clip where the guy who had his license revoked for DUI is surprised when the car starts anyway. Just because a law says a thing, a person still has to action something. If the boss says don't do it, you don't do it. Don't rightly matter if the law says you should.
> So when past presidents have said they wont prosecute marijuana laws, what was that?
Can you cite an example? If you're talking about the Biden admin, here is what the AG said:
"I do not think it the best use of the Department’s limited resources to pursue prosecutions of those who are complying with the laws in states that have legalized and are effectively regulating marijuana..."
I.e. exactly what I said is defensible in certain scenarios
– and indeed must be defended, potentially in court. It is not POTUS simply saying "I won't do it."
I'm not sure how you can hold that position; the AG is the arm of the president. If the AG says "I won't do it", then that is, by extension, the president saying the same.
And I don't think Garland's longer, winding way of saying what he said doesn't reduce to "I won't do it".
So under this logic, the president can decide not to enforce the laws that require they and their family, friends, associates, and allies to pay taxes?
Still not quite right, not in a modern state. Law has always been sovereign power, and in the modern period the entire state is the sovereign (think Leviathan.) It is strange that Americans seem to think these are personal powers.
> the law as agreed upon by Congress designates it as a personal power
No, it does not.
The extension is discretionary, the liability is not. (And the liability specifically accrues to the operators of the app stores and hosting companies.)
In context, you're both wrong. You're correct that § 2(G)(3)(A)(i) and (ii) explicitly name Bytedance and TikTok [1], so it is not up to presidential discretion to add more apps, but § 2(G)(3)(B)(ii) indicates that it is within the president's discretion to not enforce.
There are some paperwork qualifiers that for certain have not been met (the not-yet president almost certainly could not have briefed Congress as president 30 days prior) -- but they seem trivial to satisfy, and it would be pointless to initiate enforcement actions for an event nobody intends to follow through on
> but § 2(G)(3)(B)(ii) indicates that it is within the president's discretion to not enforce
Wrong.
That § lets the President designate other entities. That’s why we wrote “any of” at the top—Bytedance, TikTok or any of the things the President may designate.
Maybe I'm in over my head, but that's how I interpreted it too. It's annoying how every news source and even Wikipedia doesn't make it clear what this law does.
I'd just recommend reading the full bill. It's not that hard to understand and it's fairly short. I used a GPT to parse sections which seemed a bit complicated
Yep, that being said I'm not mad at ignoring this part.
Of all the shittyness of this bill, least of which giving the president pretty much unchecked power to ban foreign social media, the fact that it named a specific entity is to me just bad form. Law shouldn't ever include "fuck you in particular" even if the effect of the law when applied will be that.
> no actual way for the court to compel him to do anything
PAFACA was written (I didn’t name it) to command the operators of app stores and hosting companies. They’re the ones accruing liability. The President can ignore the law, but Apple and Google will accrue liabilities until the statute of limitations starts voiding them.
> the accrued liability means nothing if the president agrees he won't prosecute them, right?
No.
One, our country has a rich tradition of third parties suing to compel the enforcement of laws. Two, we also have a rich tradition of successive presidents enforcing laws their predecessors didn't.
But again, how does a lawsuit compel the president to do anything? They can’t arrest or fine him. Ignoring the lawsuit is legal according to the Supreme Court decision in July.
And as for the next president, well, he would just have to tell byte dance what his price is to allow them to operate.
But the court isn't going into a server room somewhere and pressing a button to take TikTok off the app store. Apple would take it down because they would incur some sort of retaliation if they didn't. But that retaliation would never come because Trump controls the enforcers, and he has directed them to ignore noncompliance with the law. So how would the court compel this behavior from Apple?
> that retaliation would never come because Trump controls the enforcers
Federally, only today. And federally, the judiciary has its own enforcement powers. (To say nothing of private liability caused by wilful lawbreaking, even if encouraged by the President.)
It’s why Apple and Google, informed by the most-expensive lawyers in the world, have for now de-listed TikTok.
> Disregarding a law that was passed by a bipartisan majority, signed into law by the president and ruled on by the supreme courts feels like the start of a very dangerous path
The very dangerous path started a long time ago, or at least that's how it feels from abroad. "He can't" followed by "He wouldn't" then "He did".
IMHO this is the reason things should be laws not weird tradition and conventions if they really matter, (same reason that the fault of things like SCOTUS upturning Roe v Wade is in Congress for never making it a law instead of just a precedent
really? cos I feel old, but as far back as I remember usa's vaunted democratic institutions have been a sideshow while the wealthy favour global militarist domination over the needs of ordinary american people.
I dunno about worse, but wildly more ridiculous. Not sure how to measure, but the scattergun disinfo is certainly another level beyond targeted lies.
maybe we need to undermine it? if the institutions of 'democracy' that tower over us are not working we might need to build some from the ground up that do.
ITs not so much that they aren’t working, more that 2 forces work if let alone for enough time.
1) Creation of a private propaganda arm for a party (Fox/ Dailymail etc.)
1.1) Sub point media is screwed due to the need to earn income from ads, resulting in them beaming ever increasing levels of pain and anger into everyone’s house,
2) Winning is all that matters politicking. Repubs gave up on bipartisanship, and would trash their own projects if it meant showing the dems as reliable and credible.
With these two forces, you can have a story created - creationism for example, and then a party member can go to congress / senate, point to the news article, and treat it as if its a real issue.
This was you create a cheaper, more efficient political system that has no need to spend on research, facts, or analysis.
This is the free money glitch that underpins the success of the Repub party.
The point of free speech was to enable the exchange of ideas in the pursuit of truth. But if you take over the market place, create one brand of truth, and are responsible for certifying its true - well thats a broken market.
It's both. It gives the President the authority to designate an app as controlled by a foreign adversary, forcing it to be banned or sold. It also names TikTok in particular. I didn't know about the second part until I read the original text* just now, since every summary missed that, but I'm not happy about that part either.
> The "uncensoring" is done by the executive branch.
Interestingly, the executive branch is still under Joe Biden at the moment.
TikTok content has changed in tone and tenor since President-Elect trump's policy reversal. Looks like he'll have ByteDance working for him like he did Russian fake news during his last regime.
Yes, and what's even worse to me is Trump's explicit motivation for supporting TikTok now. Like there are some interesting philosophical, moral, and maybe legal arguments against the TikTok ban but what he's seized on is simply that TikTok was a useful tool (as far as he's been told) for gaining votes. Keeping it around just benefits him politically and personally, so that's it.
Mechanistically, the law applies to the app, not the service. It's not clear to me that serving videos to users that already have the app is a violation of the law.
Yeah, a.1.B, (B) Providing internet hosting services to enable the distribution, maintenance, or updating of such foreign adversary controlled application for users within the land or maritime borders of the United States.
The provision requires the president to tell congress that a deal is in the works. Either the executive order makes no such claim and is unlawful, or there really is a deal in the works, or the president is unlawfully making an untrue claim.
There is likely to be no punishment for either of those unlawful outcomes, but they are still unlawful.
I won't argue against the idea that Trump is on a dangerous political path based around patronage and personal favors, but the law does grant him the authority to give TikTok a 90 day extension. If TikTok has not sold by then and he fails to enforce the law, that's a bigger problem.
> Disregarding a law that was passed by a bipartisan majority
I wonder if there was actually a bipartisan majority in favor of getting rid of TikTok?
Yes, the bill passed by a bipartisan majority, but TikTok was not the only thing in that bill. Previous attempts to advance a standalone TikTok bill had failed to get majority support.
This time it got attached to a bill that provided $60 billion in aid for Ukraine, $26 billion in aid for Israel, and $1 billion of additional humanitarian assistance for food, medical supplies, and clean water for Gaza. There was also $8 billion for security in Taiwan and the Indo-Pacific.
A lot of Congress considered that aid (or parts of it) to be critical, and it had taken a lot of time to get there. I bet as a result of that a lot of Congress members would vote "yes" even if they disagreed with the TikTok part.
When Biden signed it he spoke about the importance of all the aid provisions and didn't mention TikTok at all.
Only four more years of this stuff to go. In other news Trump coin has plummeted by a few billion as Melania launched her own meme coin with a ~4bn market cap.
> Disregarding a law that was passed by a bipartisan majority
It was a rider tacked onto a must-pass bill. There’s nothing about the manner it was passed that makes it special or particularly blessed. This was classic congressional sausage-making.
I'm not saying the extension is unlawful. The person I replied to seemed to imply an addendum to a law should be less enforceable than the primary focus of the law. I was simply addressing that statement.
I didn’t say it was unenforceable, just pointing it there’s nothing special about which parties voted for it out by how much.
But also at the end of the day the executive branch has sole power to enforce it or not, and if the president doesn’t want to enforce it there’s really nothing Congress or the courts can do about it other than impeaching him, which realistically won’t happen. The two parties have captured the system of three-way checks and balances, and a cult of personality has captured the party with trifecta power. That’s the game, folks. We live in an autocracy now.
How do you figure? The explicit domain of enforcement is the executive branch, so if the new guy coming in says something akin to "They've made their decision, let them enforce it" that's somewhat by design even if you may not agree with it.
The system was designed with these checks and balances in mind explicitly.
> if the new guy coming in says something akin to "They've made their decision, let them enforce it" that's somewhat by design even if you may not agree with it
It’s absolutely not. Which is why non-enforcement doesn’t release liability; if you break a law that the President declines to enforce, people can sue the government to force enforcement today and the next President can enforce tomorrow.
The ultimate consequence of that interpretation would mean that the executive does whatever it wants since all enforcement of court rulings or laws fall to the executive.
Yes, this is how government works if the judicial + legislative branches have no enforcement power. That is not at all how this government works however. I suggest taking an American civics course if you want to learn more.
Yeah, I think that's bad. Some level of prosecutorial discretion is obviously needed but furthering a state of affairs where laws are meaningless depending on if you have the favor of the executive is dangerous. The checks and balances in the passing of the law make sense but there should be a strong norm towards actually enforcing things and pushing the legislative branch to change the law if there is something wrong with it or the judiciary to rule on if it is actually legal.
