How Trump's TikTok ban reprieve could work

TikTok users rejoice at the site's return from its 14-hour hiatus, curmudgeonly critics — me included — wonder whether President Donald Trump can really get around the congressional statute aimed at banning it.

The short answer: Of course, he can.

True, as a legal matter, a president can't simply suspend the operation of a duly enacted law. As a practical matter, however, Trump will stand in a long line of chief executives who have used prosecutorial discretion to achieve the same end.

From the start, I've criticized the wordily named Protecting Americans from Foreign Adversary Controlled Applications Act, which was rushed through Congress last year on national security grounds. The statute, which we'll call PAFACA, was designed to force TikTok's Chinese parent company, ByteDance Ltd., to sell the app to a U.S. purchaser. Absent such a sale, or a 90-day window in which a sale is being negotiated, the law imposes massive financial penalties on entities that "distribute, maintain, or update" TikTok — such as by offering it in an app store or hosting its data on servers. Trump proposes freeing Big Tech from the potential fines, at least for now; companies that have distributed or maintained TikTok before are safely harbored if they resume.

Which they have. Once more, the world is safe for videos of cooking, dancing, setting political commentary to music and engaging in various other activities best left unmentioned. Hooray for the First Amendment, down with protectionism, and so on.

But how can this be? If Congress says those distributing and maintaining the popular app must pay $5,000 per user — try calculating that — how can the president say no, and the fines needn't be paid?

Because of prosecutorial discretion, the all-but-unreviewable freedom of the Oval Office's occupant to decide which laws to enforce, when, and how. The authority might be inherent in the presidency; it has existed since the middle of the 19th century when Congress expressly granted the attorney general supervisory authority over U.S. attorneys. Forty years ago, the U.S. Supreme Court described the choice of whether to undertake prosecution as "a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who the Constitution charges to "'take Care that the Laws be faithfully executed.'"

The best-known recent example is President Barack Obama's use of the tool to protect the class of immigrants known as "Dreamers." He made this choice after Congress refused to enact legislation protecting them. The implementing rules expressly cited prosecutorial discretion as legal justification for Obama's action. Although a sharp debate broke out among scholars, and the courts soon got involved, the program, in its essence, survived the controversy.

Back in the 1980s, the Supreme Court invoked prosecutorial discretion to explain why the federal government could choose to punish some of those who failed to register for the draft while ignoring others. Even President Joe Biden's effort to cancel certain student loan indebtedness has been defended as ​​​​an exercise of prosecutorial discretion.

The authority would seem broad enough to encompass Trump's decision to suspend fines for Big Tech temporarily under PAFACA. As the courts have repeatedly noted, the principal exception would be a case where the president's decision not to enforce a particular law violated the plaintiffs' constitutional rights. For example, should the government, under the guise of prosecutorial discretion, indict only Black but never White drug offenders, the courts could intervene. But even there, the burden is difficult to meet — so difficult that one has trouble imagining a potential litigant who could plausibly assert that Trump's reinstatement of TikTok violates a constitutional right. (1)

None of this is to say that Trump has the issue's merits right. Already, some are thundering anathema at the notion that Trump might use his temporary suspension order as a bargaining chip in negotiations with China on other matters. Others see the pause as purely partisan, an effort to further reduce Democrats' advantage among younger voters. And then there's the real worry that TikTok is, by design, even more addictive than other social media. However, such criticisms don't go to whether a president has the power to suspend the fines; they only go to whether Trump is exercising his discretion wisely.

I'm not sure he is.

My opposition to PAFACA rests in part on Congress' lack of sufficient fact-finding to show that China is hoovering up data from TikTok users and in part on my conviction that using an algorithm to curate content is a form of free speech (as Justice Gorsuch recently reminded us). Mainly, however, it's because I'd rather have people than the government choose apps.

So why do I worry? Because recent chief executives have become far too comfortable at using prosecutorial discretion as a tool for willy-nilly rewriting statutes that otherwise seem crystal clear. Eventually, it becomes unnerving — but that's a topic for another day.

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(1) Some courts have also found standing for states to challenge presidential decisions not to enforce particular laws, but even there, the states had to show a substantial burden on their own resources as a result of the decision.

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