Why Trump is hiding TikTok is not so legally simple

On January 17, 2025By Littum

President-elect Donald Trump is reportedly considering unconventional ways to save TikTok from an impending US ban, including an executive order that would push enforcement of the new law out for months.

But doing so could mean violating federal law, raising the danger that such a rescue could face serious legal obstacles.

An executive order gives Trump only a “narrow chance” to ensure TikTok’s survival, said constitutional scholar and Kent Law School professor Mark Rosen. “Under current Supreme Court precedent, an executive order is on very shaky ground.”

The executive order is being considered by Trump, as first reported by Washington Post and confirmed by other mediawould suspend enforcement of the TikTok Act for 60 to 90 days.

It is scheduled to come into effect this Sunday, unless the Supreme Court overturns it before then. Chinese parent company ByteDance could also stop the ban from taking effect by selling TikTok’s US operations to an owner not controlled by a foreign adversary.

ARCHIVO - President Donald Trump held an interview with The Associated Press at the Despacho Oval de la Casa Blanca in Washington on Oct. 16, 2018. (AP Photo/Evan Vucci, File) — Donald Trump is reportedly considering an executive order giving TikTok more time to survive in the US. (AP Photo/Evan Vucci) · ASSOCIATED PRESS

Trump, who on the campaign trail suggested in a social media post that he wanted to “save TikTok,” has asked the Supreme Court to suspend the sell-off-or-be-banned deadline and consider his preference for a “negotiated settlement” — given that , as president he will be responsible for national security. Trump takes office on January 20.

The main precedent that makes a Trump executive order an unreliable safe harbor for TikTok comes from a limitation on presidential power established in the landmark 1952 Supreme Court case titled Youngstown Sheet & Tube Co. w. Sawyer.

In that case, the court rejected an executive order issued by President Harry Truman ordering the US Department of Commerce to take over the nation’s steel mills.

Truman’s order purported to prevent a labor strike from threatening US steel protection during the Korean War.

Despite this claim, the court ruled that the president lacked the power to seize private property, even in a time of war.

Subsequent courts have been reluctant to identify independent, exclusive presidential authority that conflicts with the law, Rosen said, because it risks giving the president “king-like” power.

(Original Caption) 4/9/1952-Washington, DC President Harry Truman, speaking from the Oval Office of the White House, announces in a national television radio broadcast that he has ordered immediate government seizure of the nation's steel industry to avert a shutdown in steel production. He blamed the breakdown in negotiations on the steel companies, which he called — In 1952, then-President Harry Truman, speaking from the Oval Office of the White House, announced in a nationwide television-radio broadcast that he was ordering an immediate government seizure of the nation’s steel industry to avoid a halt in steel production. · Bettmann via Getty Images

When an executive order violates a law, Rosen explained, it can only withstand a challenge if the law is proven unconstitutional or if the president proves he has separate executive authority to issue it.

For example, Trump could try to challenge the constitutionality of the TikTok law on grounds that have yet to be decided by the Supreme Court. In its current deliberations, the Supreme Court is considering whether the law violates First Amendment speech protections, an argument made by TikTok and TikTok users.

Alternatively, Trump could try to argue that the executive branch exists despite the law.

But a national security argument would be an uphill battle for Trump, as Congress clarified that its intent in passing the law was to protect national security.

Any executive order by Trump would also create a new legal dilemma for a number of US tech giants, which are required by law to enforce the TikTok ban.

The way the ban is enforced under the law is that it will no longer be legal for app stores run by companies like Apple ( APPL ) and Google ( GOOG , GOOGL ) to allow users to download TikTok from their app stores , and neither can cloud storage companies like Microsoft (MSFT), Amazon (AMZN), and Oracle (ORCL) host the app.

Penalties for violations range up to $5,000 for each access granted to a US user.

Trump could ask his attorney general not to enforce the law — his nominee Pam Bondi did not commit to enforcing it when asked by lawmakers this week. But Apple and Google still have to weigh up whether it’s a risk they want to take.

There are less risky paths for Trump to take. He could push Congress to overturn the law or encourage lawmakers to pass a law extending the Jan. 19 deadline. This week, Sen. Ed Markey introduced a bill that would extend the deadline by 270 days, according to a declaration.

Sarah Baus, left, of Charleston, SC, and Tiffany Cianci, who says she is one — The Supreme Court has yet to rule on a divestment-or-be-banned TikTok law. (AP Photo/Jacquelyn Martin) · ASSOCIATED PRESS

He could also find a buyer for the US operations, or even a piece of it. Chinese government officials, according to reports from Bloomberg and The Wall Street Journalhas discussed selling the American company to Elon Musk, the owner of X.

The officials would prefer to keep TikTok under ByteDance ownership, according to media reports, but have discussed the sale to Musk as one of their contingency plans.

Antitrust experts predict Musk can clear US legal hurdles imposed by a TikTok acquisition, which some estimate could be worth $40 billion-$50 billion. One reason is that TikTok and X have different users.

Musk has a close relationship with the president-elect, having spent more than $250 million supporting his re-election campaign and helping lead a government cost-cutting effort as part of a new Department of Government Efficiency (DOGE).

Musk paid $44 billion for X by 2022 and also runs a number of other companies, including electric car maker Tesla (TSLA), SpaceX, Neuralink, Boring Co. and artificial intelligence startup xAI.

Tesla has a factory in China and sells many of its cars to that part of the world.

But Bloomberg and the Wall Street Journal both reported that there are a number of unknowns surrounding any potential deal with Musk.

They include whether he would have to sell other of his holdings, whether U.S. regulators would approve and what kind of influence officials in Beijing would have by proposing that ByteDance sell to a particular buyer.

A TikTok spokesperson responded to the Bloomberg report by saying, “We cannot be expected to comment on pure fiction.”

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