Justices Float Possibly Saving TikTok Row for Trump to Resolve

Several justices tested President-elect Donald Trump’s suggestion to temporarily pause a law that would effectively ban TikTok in the US.

The law that was the focus of Frday arguments at the US Supreme Court goes into effect Jan. 19, the day before Trump’s inauguration. The justices appeared to lean in favor of upholding the law.

In a friend-of-the-court brief, Trump suggested that the timing was “unfortunate,” and urged the justices to stay the law until he has an opportunity to work out a possible deal, an idea met with skepticism by legal experts.

In response to a question from Justice Brett Kavanaugh, Trump’s former Solicitor General Noel Francisco suggested that temporarily pausing the case might make sense. " I think it makes perfect sense to issue a preliminary injunction here and simply buy everybody a little breathing space,” said Francisco, who is now a partner at Jones Day. Francisco represents TikTok in the current dispute.

Going Dark

The bipartisan law enacted last year bans the popular social media site in the US if it isn’t sold by its Chinese parent company before Jan. 19.

It was a product of failed negotiations that started under then- President Trump over the potential national security implications of Chinese ownership of Tiktok.

More recently, then-candidate Trump appeared to reverse position, noting his popularity on the site.

Asked by Kavanaugh what the practical implications of the case would be for TikTok, Francisco said that unless the company is sold, “we go dark.”

He noted that the president has the authority to extend the deadline, but said Trump can’t do that on Jan. 19.

“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.”

Current US Solicitor General Elizabeth Prelogar pushed back on the suggestion that timing should matter here, noting that Congress set that timing, not the president.

“Congress specifically anticipated it and provided authority to lift these restrictions as soon as there’s a qualified divestiture,” Prelogar said. She represents the Biden administration, which is asking the justices to uphold the law.

Prelogar agreed with Justice Samuel Alito that if the law were to go into effect on Jan. 19 and TikTok was banned, Trump could later lift the ban if sold by its Chinese parent company. “There’s nothing permanent or irrevocable that happens on January 19th,” she said.

Ignore Law

Returning to the practical effects, Kavanaugh asked Prelogar if Trump could ignore the law. “Could the president say that we’re not going to enforce this law?”

Prelogar agreed that was a possibility, but suggested that the incoming administration could change its mind once it gets up to speed with the national security implications.

“I would think even before a non-enforcement policy were announced, of course, the President-elect would want to review all of the updated national security information that has come in over the last four years that undergird Congress’s judgment here,” Prelogar said.

Justice Sonia Sotomayor said it would be risky for TikTok to continue to operate in the US even if Trump decides not to enforce the law.

“On the 19th if it doesn’t shut down, there is a violation of law, correct?” Sotomayor asked Prelogar, who agreed.

“And whatever the new president does, doesn’t change that reality for these companies,” Sotomayor said, later eliciting from Prelogar that the statute of limitations for the government to charge those violations is five years—after Trump’s term in office.

The suggestion was that without a stay from the Supreme Court, keeping TikTok operational while still under Chinese control would be risky for the companies.

Administrative Stay

Justice Samuel Alito asked whether the court could legally stay the law.

Prelogar responded that the court typically doesn’t do so unless the side challenging the law is going to win on the merits. “And to be honest, I think that there is no argument to be made that you should find that likelihood of success,” she said.

Alito then asked about a procedural pause, known as an administrative stay. Such stays are typically in place for a few days to give the justices more time to consider an issue and don’t look at the merits of the dispute.

The Supreme Court may stay an impending execution to allow it to consider a last minute appeal, for example.

“Do you think we have the authority to issue an administrative stay as we have done in -other cases?” Alito asked.

“I don’t think this Court has a formal basis to not issue an administrative stay, if it believed that that was necessary to assist in the court’s own consideration of the case,” Prelogar responded. “I think it is in the interest of Congress’ work and our national security to resolve the case and allow the statute to take effect.”