Court watchers are split on how receptive the Supreme Court will be to President-elect Donald Trump’s “unorthodox” request to delay the implementation of a law requiring TikTok to divest from Chinese-based ByteDance by Jan. 19, one day before he takes office, or face a nationwide ban.
In a court filing, Mr. Trump suggested he could strike a deal to protect the company’s free speech and the nation’s security interests in the monumental litigation. That would put him at the center of the court’s most high-profile legal battle of this term.
The justices are set to consider the request on Friday.
“If the court follows Trump’s proposed course of action, then it will probably do so as a matter of policy and not of constitutional law. That is, I’m not sold on Trump’s executive powers argument,” said Adam Feldman, Supreme Court scholar and creator of the Empirical SCOTUS blog. “There is also little support for giving the president deference in the area of First Amendment unless there is a clear security risk as well.”
Josh Blackman, a professor at South Texas College of Law, said the president-elect is relying on his deal-making powers, not law, in his request to the court.
“I think the brief is unorthodox but may have some effect in these fairly unique circumstances,” Mr. Blackman said.
In a court filing on Dec. 27, Mr. Trump told the justices that he was not filing on behalf of either party but would like a delay in the law’s implementation to negotiate a deal.
His attorney, D. John Sauer, nominated as U.S. solicitor general, said in the brief that the “case presents an unprecedented, novel and difficult tension between free-speech rights on one side, and foreign policy and national security concerns on the other.”
“As the incoming chief executive, President Trump has a particularly powerful interest in and responsibility for those national-security and foreign-policy questions, and he is the right constitutional actor to resolve the dispute through political means,” the filing reads.
Mr. Trump has more than 14 million followers on the popular social media platform and has credited it with helping him win support among young voters.
His position on TikTok has changed. Mr. Trump initially recognized it as a national security threat but has since created an account and softened his stance. In a post on Truth Social in September, he said he would “save TikTok in America.”
Friday’s court hearing involves TikTok’s appeal to the Supreme Court. The company is asking the justices to block a law that would force it to divest from its foreign ownership by Jan. 19 or cease domestic operations in the United States. A group of TikTok users also has challenged the legislation.
ByteDance, the Chinese technology company that owns TikTok, says the law violates its First Amendment rights. The Justice Department has argued that the foreign-owned social media platform does not have free speech rights, and even if it did, national security concerns would take precedence.
TikTok says roughly 170 million Americans use the short-video sharing platform.
Mr. Feldman said Mr. Trump’s argument could give the justices an exit ramp from deciding on the thorny First Amendment dispute and allow them to approach it more cautiously and less rushed. The high court expedited the case to hear oral arguments within two weeks. The justices usually take months between granting an appeal and scheduling oral arguments.
“As a matter of policy then, this would give the court an opportunity to have a wait and see approach where they would not have to wade into the First Amendment argument, which is murky, and could instead decide whether or not to get involved with this at a later date which is consistent with the court’s approach in other areas,” Mr. Feldman said.
Congress approved the legislation with bipartisan support, and President Biden signed it in April. The concern was that China’s communist government could exploit user data that TikTok collects and put U.S. security at risk.
The Justice Department said the Chinese government had given TikTok direction about content on the platform.
TikTok lost in a lower court, and the justices refused to issue an injunction before they heard from other parties.
Ashley Gorski, senior staff attorney with the American Civil Liberties Union’s National Security Project, said the change of administration could determine the law’s fate.
“President Trump could push Congress to repeal the ban, or he might direct the Department of Justice not to enforce it,” Ms. Gorski said.
Ilya Shapiro, director of constitutional studies at the Manhattan Institute, said Mr. Trump’s brief could be seen as a request for a temporary restraining order on the law or for Congress to rewrite its effective date.
“I doubt the court will want to be seen as doing either,” he said.
Mr. Shapiro said the justices want to resolve the case before Jan. 19.
“The court frowns on reversals of legal position based on changes of administration, and this would seem to be even worse from that perspective,” Mr. Shapiro said.
The justices could side with the Biden Justice Department but delay the court’s mandate to give Mr. Trump’s team a chance to negotiate with TikTok and ByteDance or to petition for a rehearing once Mr. Trump takes office on Jan. 20.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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