The Problem with the Supreme Court's Decision Allowing the TikTok Ban
Plus, JD Vance's Senate replacement, Inauguration freeze, Special Counsel report, Biden stirs the pot, Texas judge revives mifepristone case, and more.
The Problem with the Supreme Court's Decision Allowing the TikTok Ban
The wait for TikTok’s fate in the United States is over(ish) as the Supreme Court unanimously upheld the law that bans the app unless it divests its U.S. operations from parent company Bytedance.
In the court’s 27-page decision, the nine justices agreed that “Congress was justified in specifically addressing its TikTok-related national security concerns.” They wrote that H.R. 7521 — Protecting Americans from Foreign Adversary Controlled Applications Act — can take effect on Sunday, January 19th as it is “sufficiently tailored to address the Government’s interest in preventing a foreign adversary from collecting vast swaths of sensitive data about the 170 million U. S. persons who use TikTok.”
The justices reasoned that Congress’ “rationale was content-neutral” because the law “imposes a conditional ban” as opposed to prohibiting the app outright.
The court attempted to parse legislative action intended for national data protections from unintended consequences of infringing on constitutional rights. They noted, “nothing in the legislative record suggests that data collection was anything but an overriding congressional concern.” To justify their logic, the court wrote, “we are especially wary of parsing Congress’s motives on this record with regard to an Act passed with striking bipartisan support.”
This is in reference to both chambers of Congress overwhelmingly passing the law. However, it’s misleading as Republicans attached H.R. 7521 as a rider in the supplemental appropriations bill that gave Ukraine and Taiwan needed military support, among other provisions to protect the Homeland and U.S. allies.
That bill, H.R. 815, passed with broad support, but it wasn’t because both parties necessarily agreed with the solution to national security concerns. Republicans snuck the TikTok ban into a must-pass military aid package knowing Democrats would look bad if they voted the bill down. They also knew Democrats would take heat for voting for a poison pill just to get something done. It’s a tactic the Republican Party keeps using because it works.
Interestingly, the opinion also cited Trump’s 2020 Executive Order, which kickstarted the TikTok ban. The court highlighted that while he occupied the White House, Donald Trump “invoked his authority under the International Emergency Economic Powers Act (IEEPA), 50 U. S. C. §1701 et seq., and the National Emergencies Act, 50 U. S. C. §1601 et seq., to prohibit certain ‘transactions’ involving ByteDance Ltd. or its subsidiaries, as identified by the Secretary of Commerce.”
The opinion also pointed out that the federal courts found that Trump’s EO “exceeded the Executive Branch’s authority under IEEPA” and blocked it from taking effect.
Fast forward to today—on the precipice of Trump’s second occupancy—the corporate news establishment is downplaying the leader of the Republican Party’s role in instigating and advocating for TikTok’s ban in the United States. Instead, the discussion is focused on whether he’ll “save” the app from prohibition, despite his about-face on the matter.
It’s disingenuous to pretend that Trump has no personal interest in reversing TikTok’s fate as he’s about to retake power. It’s equally disingenuous to turn a blind eye to the Republican Party’s deceitfulness in ensuring Congress passed the law in the first place.
The Democratic Party’s poor handling of the issue must not be overlooked either. While Democrats are not at fault for this current trajectory, they are complicit in allowing Republicans to be bulls in a china shop with U.S. legislation and in being feckless when it comes to lawmaking messaging.
With all of TikTok’s posturing about not selling to U.S. broligarchs, it should come as no surprise that TikTok CEO Shou Chew accepted an invitation to attend Trump’s January 20th ceremony. It’s equally unsurprising that Chew leaned into the art of flattering the malignant narcissist following the Supreme Court decision. It’s a signal that TikTok does, in fact, have a price to offer in exchange for access.
Trump’s promises about TikTok should remind everyone that Donald Trump never believed the law applied to him and—thanks to the Supreme Court—is no longer beholden to laws. He’s above the law now.
Many are pointing out that simply issuing an EO directing his Attorney General to not enforce the ban isn’t sufficient. The companies that own the app stores (mainly Apple and Google) are beholden to the law.
They also insist that Trump doesn’t have the authority to legally overturn the legislature. That authority lies with the courts and the Supreme Court upheld the law. This means it’s up to Congress to pass new law repealing the ban and the Republican-controlled Congress doesn’t exactly seem open to doing so.
But that old Democratic norm of co-equal branches and legal precedent is for suckers now. And we shouldn’t pretend as if anything is holding Trump back anymore. Our institutions failed and we have to be honest about it.
So, while it is correct that once-established legal precedent stipulates Trump can’t magic his way out of a TikTok ban, it is also correct that Trump is unconstrained from legal and political norms.
Trump is transactional by nature and he will return to power with a completely transactional regime — one that will rule by and for the wealthy (a.k.a an oligarchy). This means that Trump and his cronies get to decide whom the law applies and doesn’t apply to and at what price.
What is most alarming about all of this is that the Supreme Court greenlit the U.S. Government’s ability to arbitrarily revoke access to online sources under the guise of national security concerns without presenting any evidence. It sets a dangerous precedent for where Americans go to find information and community. It’s certainly not free anymore—by choice or otherwise.
That’s all for now! See below for more headlines
-Stephanie
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