In January, just days before the Supreme Court unanimously upheld Congress’ ban on TikTok and Donald Trump returned to the White House, Sen. Tom Cotton took to the Senate floor and warned the country that the “lethal algorithm” in the Beijing-based social media company’s app “has cost the lives of many American kids.” “Let me be crystal clear,” the Arkansas Republican said. “There will be no extensions, no concessions and no compromises for TikTok.”
Eight months later, the Trump administration has just given TikTok and the Chinese government another extension, another concession and another compromise. On Wednesday, Trump signed an executive order providing a fourth “enforcement delay” of Congress’ ban — now extending until December 16.
It’s just the latest development in a saga that served as an early warning for what was to come in the second Trump term: a president eager to steamroll Capitol Hill and a GOP-controlled Congress happy to oblige him. When it comes to Trump’s handling of the TikTok ban, it has, at best, scrambled the constitutional order, and, at worst, seen the administration openly flout a law passed by the American public’s elected representatives in order to advance the political, personal and financial interests of Trump and his allies.
On Friday, Trump is set to speak with Chinese President Xi Jinping to agree to the terms of a proposed deal that is supposed to finally end the TikTok drama and bring all parties into compliance with the law. The deal reportedly involves some sort of sale to a consortium of investors that may include Trump allies and billionaires like Larry Ellison and Marc Andreessen, though the structure and legality of the agreement remain unclear. Indeed, whatever happens Friday is not likely to end the matter.
The law passed by Congress and signed into law under Joe Biden requires TikTok’s Beijing-based parent company ByteDance to divest at least 80 percent of its financial stake in the company and also precludes “any cooperation” concerning “the operation of a content recommendation algorithm or an agreement with respect to data sharing.” Earlier this week, however, a Chinese cybersecurity official said that the framework includes “licensing the [TikTok] algorithm and other intellectual property rights.” Depending on the specifics, that licensing arrangement, with its “lethal algorithm” intact, could run afoul of the law. What then?
Some Republican China hawks on Capitol Hill insisted this week that they will closely scrutinize the deal when the terms become clearer, but there has been almost no pushback from Republicans over Trump’s decision to unilaterally ignore the TikTok ban all year — and far less from Democrats than one might have expected.
Cotton did not respond to a request for comment about Trump’s continuing refusal to enforce the law, despite being a once-voluble critic of TikTok and the Chinese government’s control of the app and arguing that the app has already “cost the lives of many American kids.”
A representative for Republican Sen. Josh Hawley of Missouri told me that if I wanted to hear from him on the matter, I was free to track him down in the Capitol. Hawley previously defended the ban and warned of the dangers of TikTok in January, shortly before Trump returned to office and announced that the administration would simply ignore it. “It’s not just a national security threat,” Hawley said of TikTok at the time. “It’s a personal security threat.”
Trump himself once shared these concerns. In 2020, he signed an executive order declaring that TikTok’s data collection “threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information — potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.”
That, of course, was before Trump courted a billionaire donor with a stake in TikTok and before Trump decided that TikTok had helped him win his 2024 reelection bid. Last month, the White House created an official TikTok account — a further sign, if one was needed, of the Trump administration’s ongoing disregard for the ban passed by Congress.
Meanwhile, Trump has benefited from an apparent lack of coordination and urgency on the Democratic side of the aisle.
Senate Minority Leader Chuck Schumer voted for the ban but later opposed immediate implementation of the law in January and endorsed a legislative extension before the law went into effect. That did not pass, but Trump has kept TikTok alive anyway without apparent legal authority to do so. Schumer did not respond to a request for comment on Trump’s series of TikTok executive orders this year.
Democratic Rep. Ro Khanna of California, for his part, opposed the TikTok ban in the first place but said that he is waiting to see more about the deal before rendering a final opinion.
“I’m working to make sure this deal does not lead to the censorship of free speech and will protect the millions of content creators who rely on TikTok,” he told POLITICO Magazine.
The whole situation has no apparent precedent in the annals of American law.
Sure, there are lots of laws on the books, and the federal government cannot enforce them all. That is why federal law enforcement relies heavily on priority-setting and careful attention to the opportunity costs of pursuing some crimes over others.
The Trump administration has made its agenda clear, and the ramifications have not been surprising. If, for example, you insist that federal law enforcement agents and prosecutors focus almost entirely on illegal immigration, then you are going to have fewer investigations and prosecutions for white-collar crime and financial fraud — which is exactly what is happening now.
In February, Trump announced that he was “pausing” enforcement of the foreign anti-bribery statute — a law that he notoriously hates — and in June, the Justice Department issued a memo that dramatically narrowed the circumstances under which the administration would enforce the law. In less overt fashion, the Justice Department has also significantly de-prioritized public corruption investigations, which Trump also hates.
Reasonable minds can often disagree about which federal laws merit the Justice Department’s focus at any given point in time, but the TikTok ban stands apart both for its public and political salience, as well as its simplicity.
The law passed with overwhelming bipartisan support in Congress and was unanimously affirmed on constitutional grounds by the Supreme Court. In the wake of the murder of Charlie Kirk, the country is also now engaged in a national, rolling public debate about the polarizing and radicalizing dangers of social media, particularly on America’s youth.
The TikTok ban is also not subtle or particularly complicated to implement. It states that the Justice Department “shall conduct investigations related to potential violations” of the ban by tech companies, including third-party service providers, and that the Justice Department “shall pursue enforcement” if a violation has occurred. The fines that are supposed to apply are massive, potentially adding up to billions of dollars.
Instead of abiding by this provision, Attorney General Pam Bondi wrote letters to Apple, Google and other tech companies earlier this year informing them that she was effectively immunizing them for any violations of the law. She argued that enforcing the ban 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.”
Left unsaid was how this decision would comply with the president’s constitutional obligation to “take Care that the Laws be faithfully executed,” how it could be squared with Congress’ constitutional lawmaking authority, or why we should all be okay with the administration unilaterally disregarding the American public’s interest in having the executive branch enforce the laws passed by their elected representatives.
The TikTok ban may or may not be good on the merits. You may hate it or you may love it, but it is the law of the land — and it has been all year.
If the ban was a bad idea, then Congress could have repealed the law or passed a legislative extension, but neither of those things has happened. Instead, pretty much every politician in Washington — on both sides of the aisle — has effectively decided that the law can be flagrantly ignored because of TikTok’s popularity and the potential electoral fallout that could result from antagonizing the app’s relatively young user base.
This is not how laws are supposed to work in this country.
Congress is supposed to pass them, and the president is supposed to enforce them. There are no constitutional carve-outs for popular social media apps or for companies that helped you win your election.
Over the last eight months, the Trump administration has run roughshod over Congress and its constitutional prerogatives. Trump’s decision to ignore the TikTok ban on his first day in office may seem minor in the grand scheme of things, but it foreshadowed a series of far more aggressive moves to usurp much of lawmakers’ constitutional authority: dismantling congressionally-created agencies, redirecting congressionally appropriated funds and implementing a massive tax hike on the American public in the form of Trump’s chaotic tariff regime.
The vast majority of this was made possible by congressional Republicans, who have largely turned a blind eye to all of Trump’s gambits, and by the Republican appointees on the Supreme Court, who have handed Trump a series of victories this year in his wide-ranging efforts to both unilaterally slash the federal government while dramatically expanding the powers of the presidency.
The acquiescence to Trump’s TikTok reprieve this year has been a far more bipartisan affair, but it has been a constitutional farce all the same, and it is not over yet.
