- During his 2024 presidential campaign, Donald Trump said he would “never stop TikTok”.
- Without court intervention, TikTok could be banned just as Trump takes office.
- Business Insider asked legal experts what Trump could do to save the app, if he decides.
Donald Trump may not be able to save TikTok, despite promising to do so during the campaign.
In June, the president-elect told users of the app that he would “never stop TikTok.” This may have earned him some support from the app’s fans, business partners, and employees who rely on TikTok to make money.
As things stand, TikTok is still marching towards its demise due to an April law passed by Congress that forces its owner, ByteDance, to either divest its US assets or face a ban from stores of applications.
TikTok is challenging the law in the US Court of Appeals for the District of Columbia Circuit. So far, it’s not going well for the company. TikTok is making a free speech argument against alleged national security concerns related to its China-based owner, which the US government has designated as a foreign adversary. The D.C. Circuit often defers to Congress when it comes to national security. The case may eventually end up in the Supreme Court.
Without court intervention, the app will either be sold (likely) or banned on January 19, the day before the inauguration. Before leaving office, President Joe Biden has the option to extend that deadline by 90 days, and he has not indicated he will do so.
Legal experts told Business Insider that TikTok’s future in the US is still very much in question despite Trump’s election victory. The company must prevail in the courts first to give its app a chance to stick around, since Trump can’t simply repeal the law.
“Because the law was passed by Congress, I’m not sure how much leeway a future Trump administration would have to ignore it,” GS Hans, a clinical professor of law at Cornell Law School, told BI.
Trump could try to persuade Congress to repeal or change the law, though that seems unlikely, said Matthew Schettenhelm, a litigation and policy analyst at Bloomberg Intelligence.
“If TikTok loses the case, as I expect, it’s much harder to see Trump stop the ban from going into effect on January 19,” he said.
Trump has two options to try to save TikTok once in office. None of them are straightforward, legal sources told BI.
First strategy: Don’t enforce the law
Trump could protect TikTok by asking his Justice Department not to enforce the Act to Protect Americans from Applications Controlled by Foreign Adversaries in relation to TikTok.
“There’s some history with Justice Departments or the president challenging a law that’s on the books, not enforcing it, declaring it potentially illegal per se or refusing to defend it,” said Aram A. Gavoor, a former -senior advisor to the Department of Law who now serves as associate dean for academic affairs at George Washington University Law School.
As an example, Gavoor pointed to former President Barack Obama’s administration’s decision to stop protecting the Defense of Marriage Act, a since-overturned law that barred federal recognition of same-sex marriages.
If Trump avoids implementing the waiver or ban law, he may not face a legal challenge, since it’s possible the Supreme Court has already upheld its constitutionality by the time he tries to ignore it.
And if Trump’s Justice Department decides not to defend the law, Bloomberg’s Schettenhelm said it could be dangerous for US companies like Apple and Google that host TikTok in app stores to keep it. Trump has already dissed TikTok after trying to stop and then force a sale of the app in 2020. Who’s to say he might not change his mind again?
“I’m not sure they would want to risk a huge liability in the hope that President Trump wouldn’t change his mind and start enforcing the law against them,” Schettenhelm said.
Second strategy: Act like the law doesn’t apply to TikTok
Trump may also argue that TikTok is not subject to the sale or ban bill.
This feels a bit absurd, as the bill specifically names TikTok and ByteDance as covered companies.
Gavoor said it’s possible that TikTok and ByteDance could reorganize so they don’t “trigger the direct designation of their names or that of a subsidiary or successor entity” under the law.
“There are a variety of different possible corporate structures that they are obviously considering,” Gavoor said.
University of Minnesota law professor Alan Rozenstein also told Fast Company that Trump could state that ByteDance left TikTok without actually asking for it.
Both of these approaches would attempt to circumvent the language of the bill to avoid its implementation.
Cornell’s Hans said any tactics a future Trump administration might take to contain TikTok would be “uncharted territory.”
“Given that the law’s effective date is the day before inauguration day, there are all kinds of open questions about how that will play out,” he said.
Of course, given all the legal hurdles, Trump may decide that saving TikTok isn’t worth the effort as he pursues other issues in his first days in office.
Representatives for the Trump campaign and TikTok did not respond to requests for comment.