Trump's TikTok Power Grab Is More Dangerous Than You Think

Only one constitutional remedy remains

Photo by Jaap Arriens/NurPhoto via Getty Images

It’s been easy to see the extra-constitutional expansion of executive power happening in a lot of different contexts under the second Trump administration: forced disappearances of migrants to foreign countries without due process; the impoundment of federal funds; the deployment of military into American streets as domestic law enforcement. But the biggest power grab might be one we just found out about: the rationale provided by Attorney General Pam Bondi for not enforcing the so-called “TikTok ban” against American tech companies, and her purported authority to immunize these selected companies from legal liability. Perhaps you read that while breathing a sigh of relief that your favorite entertainment source won’t be interrupted. You might want to think again.

The TikTok “ban” is a bit of a misnomer, as the legislation Congress passed last year, the Protecting Americans from Foreign Adversary Controlled Applications Act, was not a ban at all. Rather, the law required ByteDance, the parent company that owns TikTok, to divest its foreign (Chinese) ownership. If it failed to do so, platforms like Apple and Google, which offered the app to consumers, were barred from carrying the app, and faced significant penalties for a failure to do so (up to $5,000 per consumer who downloaded the app or updated an app they already had installed on their device, which could easily translate into millions of dollars). The Act was set to take effect on January 19th of this year if ByteDance had not divested its foreign ownership before that – the Supreme Court upheld the law’s constitutionality two days before that deadline. However, the legislation includes a provision allowing the President to issue a one-time extension of that deadline if he could certify to Congress that the company was in the process of creating “binding agreements” towards divestiture. Immediately upon taking office, President Trump issued an executive order extending the effective date of the Act for 75 days, and then again in April until June 19. On June 19, he issued another executive order which claims to extend the deadline for 90 more days, until September 17, 2025.

As far as I’m aware, President Trump never made the required certification to Congress that ByteDance was formally moving towards divestiture, and in any case, the latest extension isn’t even allowed under the Act (the 90 days is a one-time thing) – which means that any third-party provider that has offered the app since January 19 has been, and continues to be, in active violation of the law. Well, we now know why the Trump administration isn’t particularly concerned about what the law says. In response to Freedom of Information Act lawsuits, the government last Thursday released two sets of letters that the Justice Department sent to the third-party providers who would face penalties for violating the law, including companies like Apple, Google, Akamai, Amazon, Digital Realty Trust, Fastly, LG Electronics USA, Microsoft, Oracle and T-Mobile. The first set of letters, sent on February 11, assured these companies that they would not face any civil liability for being in violation of the law during Trump’s extension, citing the Attorney General’s plenary authority over all litigation involving the United States. Basically, it’s a pinky swear from Pam Bondi that she won’t go after them.

The second set of letters, sent on April 5 (when Trump extended his extension for the second time) is bolder in its language, and more alarming. First, the letter states that “the President previously determined that an abrupt shutdown of the TikTok platform would interfere with the execution of the President's constitutional duties to take care of the national security and foreign affairs of the United States.” Let’s pause here for a minute. This Act of Congress was signed into law by the President of the United States, who presumably took into consideration the impact of the legislation on [checks notes] “national security and foreign affairs” – it’s just that the President who did that happened to be Joe Biden, not Trump. (And not for nothing, but Trump tried in his first term to ban TikTok outright by Executive Order, but was enjoined from enforcing it by the courts!) The letter goes on to state, “Based on the Attorney General's review of the facts and circumstances, [Company] has committed no violation of the Act and…may continue to provide services to TikTok as contemplated by these Executive Orders without violating the Act, and without incurring any legal liability.” Bondi has decided effectively by fiat, without bringing the facts before a judge, that no violation of the law has occurred…and she then goes on to give them permission to keep violating it.

Now, look. Law enforcement resources are finite, and there are a lot of federal laws on the books, any number of which are violated every day. The Justice Department can’t, as a practical matter, investigate and sue or bring charges for all of them. Another reality is that every administration has its policy preferences and agenda, and those will necessarily involve tradeoffs. An administration that wants to prioritize human trafficking might divert resources away from drugs, and one that wants to focus on drugs, might do the opposite. Indeed, it has become clear that this administration’s enforcement priority is immigration, and its Justice Department is simply not going to put resources towards public corruption, the Foreign Corrupt Practices Act, or the Foreign Agent Registration Act. Elections have consequences, and a rearrangement of priorities, and resources, is part of the package.

The decision not to enforce the TikTok legislation (sorry, I refuse to call it a “ban”!) is not in this category. In this case, the administration isn’t merely putting enforcement of the law on a back burner. Rather, it is basically saying that Congress can’t tell Trump what to do (even in areas, like foreign commerce, where Congress has constitutional authority to legislate), that he will decide when a law becomes effective, that he will be the arbiter of how to interpret the law and whether someone is in violation of it, and that he will decide whether violators should be punished or, frankly, whether it should even be a law at all. In short, it makes Trump a legislator, judge, jury, executioner, as well as the chief executive. There’s a word for a person who has all of these powers, I forget what it is, I think it rhymes with “blictator.”

Trump’s actions represent a five-alarm fire expansion of what we have been seeing to date – an evolution from engaging in lawless actions to licensing lawlessness. We already saw a move in this direction when Trump pardoned all 1,500+ defendants from January 6. But arguably, at least there he was, in fact, using a plenary Article II power that is included in the Constitution with no limitations. Here, Trump is expanding the very meaning of Article II itself in a way that subsumes the powers and prerogatives of the other two branches. It may not seem so dangerous in the context of TikTok, but giving the green light to this “interpretation” of executive power has serious consequences. To use an extreme hypothetical, imagine a President deciding that the immigrant “invasion” is such a threat to the national security of the United States that the Attorney General will not criminally prosecute – and indeed, “immunize” — anyone who murders a federal judge who grants habeas petitions to people being removed by ICE, despite laws protecting the judiciary. Think it can’t happen? Ask yourself how many things you’re seeing now that you thought could never happen.

You might be wondering, surely this assertion of executive authority has to be illegal. As a legal matter, it seems to be. Constitutional scholars like former Assistant Attorney General Jack Goldsmith point to a 1838 Supreme Court case that says as much, called Kendall v. United States, in which the Court held that the Take Care Clause of the Constitution does not give the executive branch a “‘dispensing power’ – ‘the authority to license illegal conduct’ – or ‘power to forbid [the laws’] execution.’” Unfortunately, other legal scholars, like Alan Rozenshtein, observe that it’s unlikely that anyone has standing to bring a claim to challenge the administration’s unwillingness to enforce the law (and its encouragement to break it).

I have written previously about why regulating TikTok is important to protect our national security. But whatever you think about the TikTok law itself, you’d be wise to wake up – the courts can’t save us from the path the administration is going down, and that path is very dark. Unless we want to stay on it, there is only one remedy the Constitution leaves on the table for an executive who flouts his duty to faithfully execute the laws: impeachment.