Legal experts say Donald Trump will have difficulty stopping TikTok ban

• During his 2024 presidential campaign, Donald Trump said he would “never ban TikTok.”
• Without court intervention, TikTok could be banned immediately after Trump takes office.
• Business Insider asked legal experts what Trump could do to save the app if he wanted to.

Donald Trump may not be able to save TikTok, despite promising to do so during the election campaign.

President-elect in June told app users he will “never ban TikTok.” This may have earned him some support from the app’s fans, business partners, and employees who rely on TikTok to make money.

Currently, TikTok is still heading towards its demise due to April Law Congress has passed a resolution that forces its owner ByteDance to either sell 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. Still, The company is not doing well. TikTok is making a free speech argument against alleged national security concerns related to its owner being in China, which the U.S. government has designated as a foreign adversary. DC circuit is often shows respect for Congress when it comes to national security. The case could eventually reach the Supreme Court.

Without court intervention, the application will either be sold (unlikely) 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, but he has not said he will do so.

Legal experts told Business Insider that TikTok’s future in the US is still in doubt despite Trump’s election victory. The company must first win in court to give its app a chance to stay afloat, since Trump can’t simply repeal the law.

“Since the law was passed by Congress, I’m not sure how much wiggle room a future Trump administration will have to ignore it,” G.S. told BI. Hans is a clinical professor of law at Cornell Law School.

Trump could try to persuade Congress to repeal or change the law, although that seems unlikely, said Matthew Schettenhelm, a litigation and policy analyst at Bloomberg Intelligence.

“If TikTok loses the case, as I expect, it will be much more difficult to see Trump stopping the ban from going into effect on January 19,” he said.

Trump has two options to try to save TikTok once he takes office. None of them are simple, legal sources told BI.

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Strategy One: Don’t Enforce the Law

Trump could protect TikTok by asking his Justice Department not to enforce the Protecting Americans from Foreign Controlled Apps Act against TikTok.

“There is some history of the Justice Department or the President disagreeing with a law that is on the books, not enforcing it, potentially making it illegal in itself, or refusing to defend it,” said Aram A. Gavur, a former senior counsel at the Justice Department. , who now serves as associate dean for academic affairs at the George Washington University School of Law.

As an example, Gavour cited the decision of the administration of former President Barack Obama to end protection Defense of Marriage Acta since-repealed law that prohibited federal recognition of same-sex marriage.

If Trump avoids enforcing the sales or prohibition law, he may not withstand legal challenges, since it is possible that the Supreme Court will already uphold 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 risky for U.S. companies like Apple and Google that put TikTok on app stores to keep it. Trump has already inverted on TikTok after I’m trying to ban and then force to sell applications in 2020. Who’s to say he might not change his mind again?

“I’m not sure they’ll be willing to take on the enormous responsibility of hoping that President Trump doesn’t change his mind and start using the law against them,” Schettenhelm said.

Strategy two: act as if the law does not apply to TikTok

Trump could also argue that TikTok is not subject to a do-not-sell or ban law.

This seems a little absurd since the bill specifically names TikTok and ByteDance as protected companies.

Ghavoor said TikTok and ByteDance could reorganize so that they “do not directly give rise to the definition of their names, subsidiary or successor” under the law.

“They’re certainly looking at a lot of different potential corporate structures,” Gavur said.

Alan Rosenstein, a law professor at the University of Minnesota, spoke about this. Fast Company that Trump could claim that ByteDance had split from TikTok without actually asking him to do so.

Both of these approaches would attempt to circumvent the language of the bill to avoid its application.

Cornell’s Hans said any tactics the incoming Trump administration might use to preserve TikTok would be “uncharted territory.”

“Given that the law’s effective date is the day before the inauguration, there are many open questions about how this will happen,” he said.

Of course, given all the legal hurdles, Trump may decide that saving TikTok isn’t worth the effort as he deals with other issues in his first days in office.

Representatives for the Trump campaign and TikTok did not respond to requests for comment.