Over the weekend the internet went into a tizzy as the Chinese owned video site TikTok was shut down for users inside the United States. On Saturday the service was suspended, a day before the law banning it was set to go into effect. The app was also removed from the marketplace for both Android and iPhone users, and even those who attempted to use a VPN (virtual private network) to circumvent the ban by pretending they were logging in from a different country found they were unable to do so.
The shut down was short lived, however, as the site was back up and available the next day, based on promises from President Donald J. Trump that he would sign an executive order extending the deadline for another 90 days.
I don’t have strong feelings about TikTok as an app. I’ve never used it, and whether it is banned or continues to remain active will have no direct effect on me. I do have some concerns for those folks who use the platform as a way to promote their business, or otherwise to earn or supplement their income. But those concerns are dwarfed by my concerns about the legal process, and what the president’s executive order means for that process.
This ban, one of the few things in recent years to receive bipartisan support, was initially predicated on concerns about national security. What started as a ban on elected officials installing the app on official government devices – because of reportedly close ties between the app’s Chinese based owner, ByteDance Ltd., and the government of that nation, and concerns the app could spy on the phone records of users – escalated into a nationwide ban unless the company chose to divest itself of its U.S. operations.
The criticism, which started ironically enough with President Trump, turned into a bipartisan bill signed into law by President Biden in 2020 to prohibit use of the app on devices that belong to the federal government. That ban was followed by DOJ and FBI investigations, which included allegations that the app spied on American journalists. Then, in January of 2023, Republican Senator Josh Hawley introduced a bill that would ban the app nationwide. Though that effort was stymied by Kentucky Senator, and perennial political gadfly, Rand Paul, in March of last year another attempt at banning the app was passed by both chambers of Congress, with broad bipartisan support. The Protecting Americans from Foreign Adversary Controlled Applications Act was then signed into law by President Biden in April, and set to go into effect on January 19.
Though ByteDance contested the law, it was upheld by the U.S. Supreme Court who heard oral arguments on January 10 and on January 17 – days before the ban was set to go into effect – the court released their decision upholding the ban as constitutional.
That brings us back to this weekend when, the day after the Supreme Court released their decision, the company shutdown the app, a full day early. Then, turned it back on again on the day the ban was supposed to go into effect, based on President Trump’s promised 90 day extension.
The president campaigned on promises to overturn the impending ban, despite his own initial support of the move and continued support by many within his own party, including his cabinet picks for the Federal Communication Commission.
But should a newly elected president be able to overturn a law duly enacted by Congress, signed into law by the president at the time, and upheld by the Supreme Court?
The Constitution is clear about the roles of the different branches of government. No one questions a sitting president’s right to veto a law he disagrees with. They can also simply refuse to sign the law, what’s known as a pocket veto, thereby limiting Congress’s ability to pass it anyway, as they can by overriding the president’s veto with a two-thirds majority vote.
These are established powers of the president.
The president can also exercise power through executive orders, which have the effect of law. (And which have been the focus of discussions about the expansion of executive power in recent years.) But is it the right thing to do? When the rest of your party – and members of the opposition party – are both in rare agreement that action needs to be taken, and the Supreme Court upholds the legality of that action, is it just for the executive branch to just ignore all that and do as they please?
While I’m trying to remain optimistic about a second Trump term, and hope and pray that he is able to deliver on his promise to improve the economy, lower inflation, and bring down soaring prices on everything from real estate to groceries, I think it’s important to ask these kinds of questions.
You can love Donald J. Trump or hate him. The fact remains that he is our president. But he’s a president. Not a king. Not a monarch. A president. Elected by the American people. Answerable to them. And held in check by the balance of powers dictated in the United States Constitution.
So, can he just override the legislative branch, do as he pleases, and unilaterally allow TikTok to continue operating despite the fact that the security concerns raised by Congress haven’t yet been addressed?
I guess we’ll just have to wait and see.
