With the TikTok ban poised to go into effect in January, President-elect Donald Trump once again waded into the debate over the app’s future this past weekend.
Trump, who has sounded a much more favorable note on TikTok in the last year, is now calling for the Supreme Court to delay the implementation of a potential ban, which is set to take effect on January 19. In April 2024, Congress passed a law banning “foreign adversary controlled applications” from platforms like the Apple and Google app stores, which would effectively force TikTok’s parent company ByteDance to either sell the app or see it barred in the United States.
The law received extensive bipartisan support amid national security concerns about surveillance and meddling by the Chinese government, but has been challenged on First Amendment grounds. Prior to Trump’s weekend request, the Supreme Court had already agreed to hear a case about the ban on an expedited schedule and will weigh oral arguments on January 10.
Now, Trump is urging a pause on the policy so he can have time to find a “negotiated resolution.”
Trump’s recent statement is the latest indication that he’s interested in protecting the app, despite previously backing a ban himself. That change of heart could be due to a slew of factors, including that TikTok offered him a way to reach young male voters during the election — something he has suggested when asked about the ban — and that one of his biggest donors, Jeff Yass, is a major investor in the app’s parent company. Regardless of the rationale, he’s now signaled multiple times that he intends to advocate for the app’s survival.
“I have a little bit of a warm spot in my heart. I’ll be honest,” he said in mid-December.
If the Supreme Court upholds the law, there are multiple ways Trump could try to save the app, former Justice Department attorney Alan Rozenshtein told Vox. He notes that the way the policy is written gives the president significant discretion in how it’s interpreted, meaning Trump could direct his attorney general not to enforce the law or even say that ByteDance has divested of the app when it hasn’t.
Vox sat down with Rozenshtein, who is also a University of Minnesota law professor specializing in national security and tech, to walk through these potential scenarios and how likely each of them is. Broadly, Rozenshtein notes, the president-elect has wide-ranging authority he could use to protect TikTok in some form.
This interview has been edited and condensed for clarity.
Li Zhou
Can the Supreme Court actually pause or delay the law?
Alan Rozenshtein
Yes, because the Supreme Court can do anything, but they shouldn’t based on existing law.
Li Zhou
Can you elaborate on that?
Alan Rozenshtein
In order to pause the law, to keep it from coming into force, the general standard is that the person seeking the pause has to show a reasonable likelihood of success on the merits. So it’s not enough just to say, “Hey, this law is coming into effect, please pause it so I can challenge it.” It’s, “I’m probably going to win anyway. So please pause it while I convince you that, in fact, I will win.”
Li Zhou
Trump’s argument is not necessarily that he’d win when it comes to repealing the law. It’s just that he wants time to try to navigate the situation and figure out a different resolution.
Alan Rozenshtein
Yeah, it’s just not how it works.
Li Zhou
If the Supreme Court decides to overturn the law or pause it — can we expect it to do so prior to the January 19 deadline?
Alan Rozenshtein
What the Supreme Court could do, and I suspect it will do, and that’s why they timed it this way, is they will do oral argument, they will go back, they will vote. I suspect there will be at least five, if not more, votes to uphold the law. The Supreme Court will announce that immediately, or the next day or two weeks later. And then they will say an opinion is forthcoming.
We will know the answer very quickly. We won’t know the reason for some time.
Li Zhou
Will users still be able to access the app if a ban goes into effect on January 19?
Alan Rozenshtein
The law prohibits the app stores from distributing the app, but it does not require the app stores to go into your phone and delete the app. So if you have the app, you have the app.
The bigger issue is actually around the cloud service provider Oracle. So TikTok runs on Oracle servers in the United States, like when you go to TikTok.com, right? Like the actual machine you’re accessing is owned and operated by Oracle. And so, on January 20, presumably Oracle shuts those computers off because it has to.
What happens then? Presumably, TikTok, if it thinks it’s about to go dark, will have a contingency plan in place to shift its services from US cloud service providers to global cloud service providers … so there’s all these technical questions.
Li Zhou
The other issue is that if there are no updates to TikTok over time, it eventually becomes unusable and obsolete, right?
Alan Rozenshtein
That’s the theory.
Li Zhou
If the Supreme Court decides to uphold the law, what are the ways you see Trump being able to step in and save the app?
Alan Rozenshtein
So number one, he can get Congress to repeal the law. That would obviously be the cleanest and most effective thing he could do, but I doubt that he’ll be able to do it. The law was passed with broad bipartisan consensus. It would require Congress to reverse a vote they had taken not even a year ago, and I just don’t think he has the votes. I don’t think he really wants to spend his political capital on this in his first 100 days. He’s already gonna have trouble getting anything done.
The second thing he could do is he could direct his attorney general not to enforce the law. The law works by penalizing the app stores and cloud service providers who work with TikTok up to $5,000 per user, and he could just direct [prospective] Attorney General Pam Bondi to not enforce the law. That sort of thing is his constitutional prerogative. But the problem there is that the law would still be in effect, and these companies will still be violating it. So if you’re a general counsel of Apple, and you say, “Hey, I read on Truth Social that Trump is not going to enforce the law,” I’d say definitely don’t bank on that for obvious reasons.
The third thing he could do is declare that the law no longer applies. And the way he could do that is through the provision of the law that defines what a qualified divestiture is. [Editor’s note: As one part of the law reads, “The term ‘qualified divestiture’ means a divestiture or similar transaction that—(A) the President determines, through an interagency process, would result in the relevant foreign adversary controlled application no longer being controlled by a foreign adversary.”]
If you focus on those first few words [of the statute], “the President determines,” that raises some possibilities in terms of how you read the statute.
[One way] to read it is to say that the statute gives a lot of discretion to the president to determine what counts as a “qualified divestiture.” On that view, the president could — especially if ByteDance shifts the papers around, moves some assets from Company A to Company B, basically gives Trump enough legal cover — to declare, “Well, I no longer think that ByteDance owns TikTok.”
Now, whether or not that’s actually true is a separate question, but it might be difficult to challenge a determination that Trump makes under this provision, even if it’s not actually based on reality. That’s the thing you can do most easily that would be the most effective.
The fourth thing is he could try to facilitate a sale. Now, the problem has never been on the demand side. It’s not that there aren’t American buyers who wouldn’t happily buy TikTok. It’s on the supply side. [The question is]: will the Chinese government permit ByteDance to sell TikTok with or without the algorithm? So I think it would really be Trump as a diplomat going and trying to strike a deal with [Chinese leader] Xi Jinping. The thing is, I don’t know if Trump can do it. I don’t know if he wants to do it.
Li Zhou
For option three that you laid out, I’m curious: If there was a challenge to Trump making a claim that divestiture has happened but it hasn’t really happened, what would that look like? Where would it come from, and what would the grounds be?
Alan Rozenshtein
So the challenge would say: The statute gives the president some role in determining the divestiture, but it doesn’t allow the president to lie.
Now, the harder part is bringing the case itself. So there’s a principle in American law called standing, which is that if you want to sue in federal court, at least, you have to be the right kind of person to sue based on the thing you are alleging. So in particular, you have to be concretely and individually injured by something.
Well, who can be injured, right? So it’s not gonna be just a random person. It’s not Congress. There are two categories I could think of. One is competitors of TikTok, so Mark Zuckerberg could sue, saying, “I own Instagram Reels.” And competitors are allowed to sue when they think the government is illegally benefiting a competitor of theirs, but that would require Zuckerberg to go and sue Donald Trump, and everything we know about Silicon Valley’s current posture is that they don’t want to piss off the president.
The other people that could sue are the affected parties themselves. So Apple and Oracle could sue, not to challenge the divestiture determination, but to clarify, to seek what’s called a declaratory judgment, to clarify the legal obligations. But that still would involve them suing and making it possible that Trump would lose, and that might annoy Trump. So there’s a small universe of people that could sue, and they have other reasons to not necessarily want to sue.
Li Zhou
Theoretically, if one of the parties you mentioned does decide to move forward with a lawsuit, how likely do you see that being a successful case that upholds the law?
Alan Rozenshtein
I think a lot depends on if it’s obvious that Trump just announced a divestiture where nothing had happened. I think the courts would probably strike that down. If ByteDance does some things that plausibly make the case that something like a divestiture has occurred on the margins, I could imagine courts deferring to the president saying, “Look, you know, this question of whether or not TikTok is controlled by a Chinese company is very fact-specific. It implicates national security and foreign policy determinations. Congress gave the president a role, and the president is exercising that role. We’re not going to second-guess that.”
Li Zhou
What do you see as the most likely scenario from here on out?
Alan Rozenshtein
I think the Supreme Court will uphold the law. And then I think through some combination of a sale of something, maybe without the algorithm, plus Trump declaring some stuff, probably there will be something like TikTok that continues [in the US], but exactly in what shape is very unclear.
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