- During his 2024 presidential campaign, Donald Trump said he would “never ban 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 chooses.
Donald Trump may not be able to save TikTok, despite promising to do so on the campaign trail.
In June, the president-elect told the app’s users that he would “never ban TikTok.” This may have given him some support from the app’s fans, business partners and employees who rely on TikTok to earn money.
As things stand, TikTok is still marching towards its demise in the US because of one the April Act was passed by Congress forcing its owner, ByteDance, to either divest its US assets or face a ban from app stores.
TikTok is challenging the law in the US Court of Appeals for the District of Columbia Circuit. So far, things are not going well for the company. TikTok is making a free-speech argument against alleged national security concerns tied to its owner being based in China, which the U.S. government has designated as a foreign adversary. The DC circuit often shows deference to Congress in terms of national security. The case may ultimately end up in the Supreme Court.
Without court intervention, the app is set to either be sold (unlikely) or banned on January 19, the day before the inauguration. Before he leaves office, President Joe Biden has the option to extend that deadline by 90 days, and he has not indicated that 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 win. The company must first win in the courts to give its app a chance to stick around, because Trump can’t just repeal the law.
“Since 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 may try to persuade Congress to repeal or amend the law, although that seems unlikely, said Matthew Schettenhelm, a process and policy analyst at Bloomberg Intelligence.
“If TikTok loses the case, as I expect, it’s much harder to see Trump stopping the ban from taking effect on January 19,” he said.
Trump has two options for trying to save TikTok once in office. None of them is uncomplicated, legal sources tell BI.
Strategy One: Don’t enforce the law
Trump could protect TikTok by asking his Justice Department not to enforce the law protecting Americans from foreign adversaries’ controlled applications regarding TikTok.
“There is some history of the Justice Department or the president going against a law that’s on the books, not enforcing it, potentially declaring it illegal per se or refusing to defend it,” said Aram A. Gavoor, a former Justice Department general counsel who now serves as associate dean for academic affairs at George Washington University Law School.
As an example, Gavoor pointed to the decision by former President Barack Obama’s administration to end defense The Defense of Marriage Acta since-repealed law that banned federal recognition of same-sex marriages.
If Trump avoids enforcing the divestment or ban law, it cannot withstand a legal challenge, as it is possible that the Supreme Court will have already upheld its constitutionality when he tries to ignore it.
And if Trump’s Justice Department chooses not to defend the law, Bloomberg’s Schettenhelm said it could be risky for U.S. companies like Apple and Google that host TikTok on app stores to keep it. Trump has already done it flip flop on TikTok after trying to ban 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.
Strategy two: Act like the law doesn’t apply to TikTok
Trump may also argue that TikTok is not covered by the divest-or-ban.
This one feels a little absurd, since the bill specifically names TikTok and ByteDance as covered companies.
Gavoor said it’s possible TikTok and ByteDance could reorganize so they don’t “trigger the direct definition of their name or a subsidiary or successor entity” under the law.
“There are a variety of potential corporate structures that they are undoubtedly considering,” Gavoor said.
University of Minnesota law professor Alan Rozenshtein also spoke Fast company that Trump could declare that ByteDance divested from TikTok without actually demanding it.
Both of these approaches would try to work around the bill’s language to avoid enforcing it.
Cornell’s Hans said any tactics a future Trump administration might take to keep TikTok around would be “uncharted territory.”
“Given that the law’s effective date is the day before Inauguration Day, there are all sorts of open questions about how this will play out,” he said.
Of course, given all the legal hurdles, Trump may decide it’s not worth the effort to save TikTok 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.
