How Can Trump Choose Not to Ban TikTok?

When presidents opt not to enforce the law.

Like many members of my generation, I spend a lot of time thinking about screen time.

I’ve grown increasingly pessimistic about the grasp that smartphones and addictive technology have on Gen Z — a problem that only seems to be intensifying. (The latest example that’s depressing me: This weekend, OpenAI was forced to revive an iteration of ChatGPT that it had sunset … because so many of its users complained that they had lost a close friend when the old model was put down.)

This, more than anything, is why I deleted TikTok a few years ago. I know I should care about the data privacy concerns of it all — but, again, like many in my age cohort, after spending our entire lives quickly clicking “Accept” after skimming (OK, skipping) through “Terms and Conditions,” it’s a hard issue to get passionate about. Really, I felt that I was spending too much time mindlessly scrolling through the app, which had become just a little too algorithmically attuned to what I wanted next.

A few weeks ago, though, I finally got annoyed with not being able to open TikToks that my friends were sending me. So, I redownloaded the app, only for that purpose. (This might sound like a gateway to getting re-addicted, but actually, I’ve been surprised by the fact that I’ve only opened the app since redownloading it to occasionally watch what people send me. Habits can be broken, after all!)

My own relationship with algorithmic social media isn’t the point here, though. Because this chronology begs a broader question: Why was I able to redownload TikTok at all?

On April 24 of last year, the-President Joe Biden signed into law the bipartisan Protecting Americans from Foreign Adversary Controlled Applications Act, which was supposed to ban TikTok in the U.S. if it hadn’t been sold to an American company after, at most, 360 days. (The ban’s default effective date was 270 days after enactment, with the possibility of a “one-time extension of not more than 90 days” if the president certified to Congress that “significant progress” was being made towards a sale.)

That was 476 days ago, and TikTok still remains freely available on every app store.

The reason is a trio of executive orders from President Donald Trump: one on January 20, pausing the TikTok ban for 75 days; the next on April 4, for another 75 days; and the most recent on June 19, for 90 days. Notably, none of these directives contained a certification to Congress that TikTok was about to be sold, as required by the law (which, of course, also only allowed for one extension, not three).

Last month, we received some insight into Trump’s justification for doing this, courtesy of a Freedom of Information Act request for the letters that Attorney General Pam Bondi has sent to companies like Apple and Google assuring them that, no, they won’t be prosecuted for continuing to make TikTok available past the 360-day deadline (even though the 2024 law says that they can be).

For help understanding the letters, I called up Alan Rozenshtein, a law professor at the University of Minnesota who has written extensively about the TikTok case.

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Let’s start by taking a step back, and getting something out of the way that may sound alarming to laypeople but is conventional wisdom among lawyers: Yes, presidents do sometimes decline to enforce the laws that are passed by Congress.

Presidential non-enforcement generally falls in one of two buckets, Rozenshtein said.

The first is known as “prosecutorial discretion.” We live in a big country! There are, unfortunately, a lot of criminals. With its limited resources, the executive branch can’t possibly arrest them all. So federal prosecutors are forced to make choices, prioritizing some illegalities over others.

The canonical example of this is immigration law, where Democratic and Republican presidents (including Trump in his first term, but not his second) have generally prioritized deporting undocumented immigrants who have committed crimes since arriving in the U.S. over those who haven’t. Barack Obama went so far as to shield so-called “DREAMers” (those who arrived illegally as children) from deportation, effectively declining to enforce immigration law for that subset of individuals.

The second type of non-enforcement is when a president deems that a law is unconstitutional.

“An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed,” the Supreme Court ruled all the way back in 1886.

Presidents have sometimes indicated that they view a law as unconstitutional and, therefore, will decline to enforce it. As an example, Rozenshtein pointed to Obama’s response to a 2015 defense bill containing provisions banning the military from bringing Guantánamo Bay detainees into the U.S., as a way to thwart Obama’s goal of closing the prison in Cuba.

Obama signed the bill into law, but he also attached a “signing statement,” which is a message presidents sometimes write when they sign laws. Sometimes, these statements are simple: Thank you, Chairman So-and-So for your work on this legislation. Other times, they’re a bit more controversial: Yes, I am signing this into law, but I don’t think it’s constitutional, so I probably won’t do it. (But with more flowery language.)

“Under certain circumstances, the provisions in this bill concerning detainee transfers would violate constitutional separation of powers principles,” Obama wrote. He added: “My Administration will implement them in a manner that avoids the constitutional conflict.”

It’s important to note that the Supreme Court has sanctioned both types of non-enforcement, at least to some extent. In the 1980s, as states began using lethal injection as a method of capital punishment, a group of death row inmates urged the Reagan administration to sue the states, since lethal injection drugs had not been approved by the FDA. The Reagan administration declined to go after the states. The inmates sued the federal government, arguing that it had to enforce the laws about which drugs can be used and for what.

In Heckler v. Chaney, the Supreme Court sided 8-1 with the administration, ruling that a federal agency’s decision not to take a specific enforcement action generally cannot be second-guessed by the courts.

As for the second type of non-enforcement, the court has recognized certain instances in which a president might not have to enforce a law because it infringes on his constitutional authority. For example, up until 2020, it was U.S. policy that when an American citizen was born in Jerusalem, their passport wouldn’t list any country of birth. This was despite the fact that, in 2002, George W. Bush signed a bill into law that included a provision mandating that the State Department list Israel on such a citizen’s passport if the citizen requested it. When he signed the bill, Bush affixed a signing statement saying the law inflicted on his “constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.”

In Zivotofsky v. Kerry, the Supreme Court agreed the president did have the exclusive power to recognize a foreign country’s boundaries. Importantly, the court didn’t rule more broadly on the question of presidential non-enforcement-due-to-unconstitutionality. But it did, at least, sign off on the notion that there are some things in the foreign affairs sphere that Congress can’t make a president do.

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And that brings us back to TikTok, because the Bondi letters revealed that Trump has used a very similar justification.

“Article II of the United States Constitution vests in the President the responsibility over national security and the conduct of foreign policy,” the Justice Department wrote. “The President has determined that an abrupt shutdown of the TikTok platform would interfere with the execution of the President's constitutional duties to take care of the national security and foreign affairs of the United States. The Acting Attorney General has concluded that the [TikTok ban law] is properly read not to infringe upon such core Presidential national security and foreign affairs powers.”

Rozenshtein noted one key difference, though. Trump wasn’t simply saying, as Bush and Obama did in the aforementioned signing statements, that the law was unconstitutional and therefore he couldn’t apply it.

He was creating a third bucket, saying that the law could be read to be unconstitutional if it called for TikTok to be banned, so to avoid this conflict, his administration wasn’t reading it this way.

This move echoes the doctrine of constitutional avoidance, which holds that if a statute is ambiguous about what it means, and one possible meaning would make it unconstitutional, judges should default to the meaning that falls within the bounds of the Constitution.

But here’s the thing: the TikTok law is not ambiguous, Rozenshtein noted. It quite clearly says that after 360 days, TikTok should have been banned in the U.S. if it hadn’t been sold by its Chinese parent company.

“The problem with the letter is twofold,” Rozenshtein told me. “First, the constitutional analysis is wrong. This law is not, in fact, unconstitutional as it applies to TikTok.¹ And second, even if it were unconstitutional, you can’t interpret the law not to apply, because the law is very clear. The law is not ambiguous as to its application.”

To be honest, I exited my conversation with Rozenshtein even more conflicted than I entered it. Rozenshtein believes that Trump’s claim of unconstitutionality is not as supported as those others — he also notes that the administration has never offered a comprehensive legal analysis arguing otherwise — and is hurt by its odd attempt to claim that the TikTok ban can somehow be read as to not require the banning of TikTok.

Which is fair! But, even with that in mind, is Trump really doing anything all that unique? Vox has written that, by pausing the TikTok ban Trump’s TikTok pause, Trump had claimed “a power even King George wasn’t allowed to have.” But, at the end of the day, it seems to me like he’s announcing that he views a law as unconstitutional and has decided he isn’t going to follow it — just as previous presidents have done, just as Biden’s solicitor general said a president could do in respect to this very case.

His vague explanation of the unconstitutionality doesn’t seem all that much more vague than the Bush or Obama signing statements. And his decision doesn’t seem any more or less political than, say, the Obama administration’s refusal to prosecute federal marijuana crimes in states that had legalized the drug (which technically falls in Rozenshtein’s first bucket of prosecutorial discretion but doesn’t exactly seem like a case where the Justice Department truly lacked the resources to carry out the prosecutions. It just didn’t want to, like Trump doesn’t want to here.)

Of course, something having precedent doesn’t make it good. I think there’s a strong case to be made that we should pay more attention to presidents declining to enforce law, and perhaps have more specific standards than Well, OK, if they say it’s unconstitutional, there’s nothing we can do.

As Rozenshtein told me, any standards along these lines will probably have to come from Congress. There aren’t many people (or companies) who would have standing to sue over the non-enforcement of the TikTok ban, which limits the ability of the courts to intervene. On the other hand, 82% of Congress voted for the TikTok law. You would think some of them would have an interest in getting it enforced.

Instead, Republican lawmakers have largely deferred to Trump on this issue (like others), leaving few obstacles in his way if he continues to decide not to enforce the law. It’s sort of a weird quirk of the American system — the president is charged with enforcing the laws, but the courts can’t do much to make him if he doesn’t want to — even if it isn’t one unique to Trump.

Then again, Rozenshtein reminded me, the Founders were counting on three active branches of government, not just two. “The Constitution was meant to be enforced actually, not through courts, but through political processes and interbranch fighting,” he said. Congress could choose any number of avenues to pressure Trump into compliance with the law — holding up his nominees or his priorities, passing new bipartisan laws, launching investigations and issuing subpoenas, all the way up to impeachment — although, of course, they won’t.

As I forecasted before Trump took office, neither party sees a particular benefit in depriving voters of TikTok — so, if it ever gets banned, it would probably have to come from the two parties taking the leap together (as with the original law). Those circumstances are unlikely to be reignited any time soon, which means it’s more likely both parties will quietly allow the app to live than either party will take a lonely stand in favor of the law they passed.

In the meantime, everyone can keep on scrolling.

1. Quick note here: the Supreme Court ruled 9-0 in January that the TikTok law is not unconstitutional as it pertains to the First Amendment. But it didn’t weigh in on whether the law is unconstitutional as it pertains to separation of powers, which is the argument Trump is making and Rozenshtein is dismissing here.