How Trump Could End Up Saving TikTok

And cement his gains with young voters in the process.

A pair of TikTok influencers record outside the Supreme Court just after oral arguments on the app’s future. (Photo by Gabe Fleisher)

If you had asked me in 2020 who would eventually decide the fate of TikTok in the United States, I probably would have answered — as with most of the country’s thorny legal questions — that it would be the Supreme Court.

Donald Trump or some other Republican president would be trying to ban the app to burnish their anti-China bona fides, I likely would have said. Democrats, afraid of losing a key platform to communicate with young voters, would be pushing back.

I would have been right, but mostly wrong. The Supreme Court is indeed in the throes of deciding if TikTok should remain online in the U.S., after oral arguments which I attended on Friday, but the partisan lines have been scrambled on the issue in ways that were difficult to predict.

Trump, who tried to ban the app by executive order in 2020, is now promising to rescue it. And President Joe Biden, who reversed Trump’s edict upon entering office, is defending a bipartisan law — which he signed last year — to ban the app if its Chinese parent company doesn’t sell it.

Of the two men, of course, Biden is still the one in power. The U.S. only has “one president at a time,” as the saying goes. But as Trump prepares to return to the White House, it has sometimes been difficult to tell who it is. Friday was one of those times: even though Trump was immersed in very different legal proceedings as the oral arguments were playing out — he was being sentenced for his felony conviction in New York — it often felt like he was hovering over the Supreme Court hearing, just out of view.

Solicitor General Elizabeth Prelogar, the Biden government’s top lawyer, was tasked with defending the bipartisan law; in an intriguing clash of administrations, Noel Francisco — Trump’s former solicitor general — was the attorney tapped to represent TikTok as the company tried to challenge the looming ban (and, with their choice of lawyer, ingratiate themselves with Trump at the same time).

Trump’s pick for solicitor general in his next administration, John Sauer, has also jumped into the dispute, penning an amicus brief on the president-elect’s behalf urging the justices to pause the ban until Trump re-enters office. Notably, as Francisco wrapped up his opening statement Friday, it was Trump’s position (asking for a pause) — not TikTok’s (asking for the law to be reversed) — that he closed with.

“In short, this Act should not stand,” Francisco argued. “At a minimum, you should preliminarily enjoin it, which will allow you to carefully consider this momentous issue and, for the reasons explained by the president-elect, potentially moot the case.”

“I welcome your questions,” he then said.

As the arguments went on, it soon became clear that Trump represents the app’s best hope at survival. One by one, the justices expressed skepticism to TikTok’s broader case that the law violated its First Amendment rights to free expression. “Congress doesn’t care about what’s on TikTok. They don’t care about the expression,” Chief Justice John Roberts said, sounding a theme that his colleagues repeated. “That’s shown by the remedy: they’re not saying TikTok has to stop, they’re saying that the Chinese have to stop controlling TikTok.”

(One exception seemed to be Justice Neil Gorsuch, Trump’s first appointee. As I’ve noted, the conservative justices are not a monolith and Gorsuch is the group’s resident libertarian. “General, isn’t that a pretty paternalistic point of view?” he asked Prelogar at one point. “Don’t we normally assume that the best remedy for problematic speech is counter-speech?”)

If the court is indeed headed for a near-unanimous affirmation of the anti-TikTok law, most commentators have expressed the view that Trump — mostly thanks to a quirk of timing — won’t have many options. The measure set a 270-day clock for TikTok to be banned in the U.S. if its owner, ByteDance, doesn’t sell it, with the possibility of a 90-day extension granted by the president. Biden signed the bill on April 24, 2024, which means time runs out on January 19, 2025, the last day of his term. If Biden had signed the bill just one day later, then perhaps TikTok could rest its laurels on a Trump extension. But otherwise, some analysts have suggested, the app is out of luck.

I left the courtroom with a slightly different sense, however. While it did seem clear that the justices were leaning towards letting TikTok “go dark” on January 19th, less attention has been given to a line of argument — embraced, to some degree by both parties in the case — that would allow Trump to revive TikTok on the 20th.

In the end, a dispute that has mostly been animated by lofty questions of balancing national security and the First Amendment could end up on hinging on a much more technical matter: If a deadline has already passed, can it be extended?

Unsurprisingly, Francisco — TikTok’s lawyer — was all too happy to suggest that Trump would be able to offer TikTok an extension, even if the deadline for a sale had already passed by the time he entered office. “On January 19th, we still have President Biden, and on January 19th, as I understand it, we shut down,” Francisco said. “It is possible that come January 20th, 21st, 22nd, we might be in a different world.”

But, strikingly, Prelogar — defending the government — didn’t push back on the idea either, while later explaining (after Justice Amy Coney Barrett, with a tone of surprise, asked her to clarify) that she wasn’t taking a firm position on the question. Later, Prelogar appeared to endorse another option in Trump’s arsenal: simply refusing to enforce the ban once he’s sworn in.

“I think, as a general matter, of course, the president has enforcement discretion,” Prelogar told Justice Brett Kavanaugh. (Remember: the solicitor general is charged with defending the executive branch as an institution, so it’s not uncommon that she might stake out a maximalist position in favor of executive authority, even if the stance will ultimately benefit the other party.)

These proposals might sound bold, but they both have precedents. The Justice Department has long argued that presidents have the authority not to enforce laws they deem unconstitutional. As for the retroactive extension, the Supreme Court held in a 2021 case — cited by Prelogar on Friday — that, for the purposes of that dispute, the government could extend a deadline that had passed as long as Congress hadn’t explicitly said otherwise.

In his opinion for a 6-3 court, Justice Neil Gorsuch drew a comparison to granting reprieve to a “forgetful student who asks for an ‘extension’ for a term paper after the deadline has passed.”

Alone among the justices, Sonia Sotomayor — Trump’s fiercest critic on the bench — expressed discomfort at the idea of Trump bucking the court’s ruling, in an exchange at the end of the two-hour arguments that seemed less like a question to Prelogar and more like a statement aimed at Trump:

JUSTICE SOTOMAYOR: I am a little concerned [at the] suggestion that a president-elect or anyone else should not enforce the law when a law is in effect and has prohibited certain action, that a company would choose to ignore enforcement on any assurance other than the change in that law. But putting that aside, on the 19th, if it doesn’t shut down, there is a violation of law, correct?

GENERAL PRELOGAR: Yes.

JUSTICE SOTOMAYOR: And whatever the new president does doesn’t change that reality for these companies?

GENERAL PRELOGAR: That’s right.

Sotomayor also added an ominous warning to tech companies, like Apple or Google, that face hefty fines under the law if they continue to distribute TikTok after the ban takes effect:

JUSTICE SOTOMAYOR: How long is the statute of limitations in effect? Assuming that [tech companies] violated it that day and later continued to violate it, but how long does the statute of limitations exist for a civil violation of this sort?

GENERAL PRELOGAR: It would be a five-year statute of limitations.

So where does that leave us? The Supreme Court appears poised to uphold the TikTok ban. On January 19, according to Francisco, that means TikTok will “go dark” in the U.S. (That’s a slightly over-dramatic rendering of the truth, which is that TikTok will likely stop being available on app stores or the web, but will still be available to those who have already downloaded it, although they will not be able to download updates to the app.)

But, on January 20 — after a one-day ban — Trump could either try to offer TikTok an extension or simply decline to enforce the law entirely. Then it would be up to tech companies whether they risk following the president’s lead and allow TikTok to return, despite the possibility of penalty. But, really, who would try to stop them?

And, finally, we arrive at the politics of all this. If Trump tries to give TikTok a reprieve, there aren’t many parties who would have standing to sue him. TikTok’s competitors might, but they don’t seem particularly interested in bucking Trump right now: the biggest company that would stand to suffer (relative to the profit they would see otherwise) if the TikTok ban is iced is Meta, owner of Instagram Reels, which has lately been trying to get in Trump’s good graces.

Congress might have standing, but judges have historically been averse to intervening in disputes between the executive and legislative branches. And which lawmakers would be suing anyways? Nearly all Republicans voted for the law, but are they going to buck Trump if he decides on a pro-TikTok party line? And do Democrats, already in a weakened state, want to be the party that tries to take TikTok from young voters?

All in all, this could be shaping up to be a PR coup for Trump. There are a lot of theories about why Trump flip-flopped so suddenly on TikTok, including the possibility that it could have been the influence of billionaire TikTok investor Jeff Yaas, a top Trump donor.

Yaas certainly could have played a role, but I think that explanation elides the obvious answer: Trump recognizes that TikTok helps him politically, and thus he wants to keep it afloat.

The president-elect has been explicit on this point, sharing a graphic on Truth Social earlier this month that showed how well he performed on the app during the election and adding, “Why would I want to get rid of TikTok?”

As a general matter, Americans are fairly split on the idea of banning TikTok: 28% are opposed, 32% support, and 39% have no opinion, according to a Pew poll. But part of Trump’s political genius is recognizing that a poll like that can be misleading: on an issue where so many people are agnostic, it doesn’t matter which stance more people hold, it matters which stance more people are passionate about.

And on this one, the people who care really care — and they’re largely opposed to ban. According to the same poll, 61% of U.S. adults who use TikTok are opposed to ban; among adults who don’t use TikTok, respondents were about as likely to support a ban (42%) as to not have an opinion (43%).

Trump already made huge strides among 18- to 29-year-olds in 2024, going from losing the group by 25 percentage points in 2020 to losing them by only four percentage points this cycle. Now, one of his first acts as president might be rescuing Gen Z’s favorite gathering place from oblivion, saving the app that Biden tried to ban.

Just like the stimulus checks that were sent out during Trump’s first term stuck in voters’ minds during this election cycle — long after they had fallen out of the cycle — recusing TikTok could be the type of move that could help Republicans extend their gains with a key demographic for years to come.