TikTok’s divest or be banned date is January 19, 2025 — a day before Trump’s inauguration. In TikTok’s appeal to the Supreme Court for an temporary injunction of the Protecting Americans from Foreign Adversary Controlled Applications Act, TikTok’s lawyers argued that the court must allow the app to operate through inauguration day to prevent the silencing of millions of Americans during a critical moment for political expression. But TikTok has other reasons to defer its fate to the next administration.
Although Trump originally led the charge against TikTok, his thinking has seemingly changed since 2020. When the Foreign Adversaries Act was being debated in March, Trump expressed opposition to the legislation on Truth Social, writing that a ban on TikTok would allow “Facebook and Zuckerschmuck double their business.” (Trump was personally banned from Facebook after the riots on January 6, 2021.) Trump recently said he has “a warm spot in [his] heart for TikTok,” suggesting that his engagement with young voters on the app helped clinch his victory in November. Last week, Trump met with TikTok CEO Shou Chew (周受資) at Mar-a-Lago. Details about the meeting haven’t been released to the public yet. Just yesterday, Trump said, “Maybe we gotta keep this sucker around for a little while,” again referencing his success on the platform.
The briefs filed with the Supreme Court so far — the deadline is December 27 — provide some insight into how politics, specifically Trump’s vocal support of TikTok, might influence the outcome of the case. Senate Minority Leader Mitch McConnell, in his brief submitted on December 18, argued that “Any such injunction will move the divesture date beyond that prescribed by law — and into a new presidential administration. TikTok clearly hopes that the next administration will be more sympathetic to its plight than the incumbent administration. In other words, delay is the point.” McConnell argued that Congress chose the divestment date to remove political uncertainty by ensuring the divestment was dealt with during the current administration. To grant an injunction would be going against Congress’ wishes.
But Trump’s new position on the app could also help TikTok’s case. The D.C. Circuit’s reasoning for their judgment that national security outweighed free speech concerns hinged on the idea that it would “be wholly inappropriate” for the court to override a national security assessment that was deliberated on by two successive administrations and Congress. It’s possible that TikTok’s lawyers will use Trump’s recent comments to argue that the government’s national security interest is disingenuous, as the person who started the crackdown on TikTok seemingly changed his mind when it suited his political goals. Or they could argue that further deliberation on TikTok is evidently needed. In their application for an emergency injunction, TikTok’s lawyers wrote, “An interim injunction is also appropriate because it will give the incoming Administration time to determine its position, as the President-elect and his advisors have voiced support for saving TikTok.”
It’s too soon to tell how the Supreme Court will rule on these arguments. In the event that the court upholds the D.C. Circuit decision and the Foreign Adversaries Act remains intact, the answer to the question “What will Trump do?” has two parts: what Trump wants to do and what he’ll be able to get away with.
Figuring out Trump’s approach to TikTok is more complicated than framing his evolving position as a “flip-flop” and assuming, in turn, that he would do whatever in his power to save the app. Trump has continued to express that TikTok poses a national security threat, and we can assume Trump is listening to the opinions of the many members of his advisory team who are in favor of the ban. He has not gone as far as some members of his inner circle — like Robert F. Kennedy Jr. and Elon Musk — in questioning the constitutionality of the ban. Trump’s strongest message of support for TikTok was perhaps a promise he made in September on Truth Social that he would “save TikTok.” This was mentioned alongside an appeal for Americans who use the platform to vote for him, suggesting that the definitiveness of his promise to save the app was merely election rhetoric.
Trump’s opposition to the bill might boil down to his desire to negotiate the terms of the deal himself, without instruction from Congress. Near the end of his first term, Trump was heavily involved in a number of TikTok’s divestment negotiations — reportedly articulating specific requirements and even pushing for a cut of the deal to go to the Treasury Department. In September 2020, Trump approved a plan proposed by ByteDance, Oracle and Walmart, whereby Oracle and Walmart would assume 20% stake in a new company for TikTok’s U.S. operations called TikTok Global. The deal was permanently halted for legal and political reasons, one of those reasons being that Biden launched a new investigation into TikTok when he got into office. Trump may be hoping to strike a deal similar to the one he originally approved, which gives U.S. companies more control over TikTok but that doesn’t require total divestment.
What Trump can get away with is a different story. Trump has not made clear how he would “save TikTok” and he tends to think (or at least claim) that he has more power than he actually does. In 2020, Trump told reporters he would use emergency economic powers to ban the app. “Well, I have that authority,” he said. The courts later determined that he did not in fact have that authority.
In reality, if the act is upheld, Trump’s options are limited. He could try to convince Congress to repeal or amend the law. This would be a tall order, as the act passed with overwhelming bipartisan support. Republicans in Congress might be less willing than Trump to change their position, as while Trump’s erratic decision-making is effective as part of his personal brand, politicians usually want to avoid coming across as unreliable.
Trump could choose not to enforce the law. But this would be a violation of the Take Care Clause of the U.S. Constitution, and non-enforcement could lead to lawsuits against the federal government. Congress could push back via investigations, hearings, legislation and even impeachment. Non-enforcement would also expose American companies that do business with TikTok to legal liability because the act makes it “unlawful for an entity to distribute, maintain, or update” TikTok after January 19, 2025. These companies might be inclined to follow the law even if Trump claims he won’t enforce it.
Finally, Trump might try to make some sort of divestiture deal that isn’t as strict as what Biden would have approved. Perhaps something similar to the deal he approved in September 2020. The Foreign Adversaries Act gives the president the authority to determine whether a divestiture is qualified. A qualified divestiture of TikTok would mean the app is no longer controlled by China and no longer maintains an operational relationship with ByteDance. It’s unclear how much wiggle room Trump would have within these rules to create a less stringent divestment. Indeed, TikTok and ByteDance have argued that their proposed national security agreement, which doesn’t call for divestment, would effectively create operational independence for TikTok’s U.S. operations.
It appears the Supreme Court is aware and accounting for the fact that an injunction puts TikTok’s fate more squarely in the hands of the next administration, as the court is putting off a decision on whether to grant an injunction until after it hears oral arguments. But even if the Supreme Court decides to uphold the act before Trump gets into office, Trump will still have the authority to evaluate a divestiture agreement. In the coming months, we can hope the checks and balances will hold each other in equilibrium to deliver a fair outcome for TikTok.
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