The debate surrounding TikTok continues to persist. The acknowledgement of the Chinese-owned app by Republican presidential candidate Donald Trump has reignited public interest in the platform.
Earlier this year, the Protecting Americans from Foreign Adversary Controlled Applications Act, also known as the TikTok ban, was passed by Congress and subsequently signed by U.S. President Joe Biden. Following this, TikTok and its parent company, ByteDance Ltd., filed a petition in the U.S. Court of Appeals for the D.C. Circuit against Attorney General Merrick Garland, arguing the constitutionality of the law. Oral arguments are scheduled for September to address the legal challenges presented by the new law, which mandates ByteDance to divest from its U.S.-based TikTok operations.
The TikTok ban prohibits the distribution, maintenance, or updating of foreign adversary-controlled applications. TikTok and ByteDance Ltd. are labeled as such due to their China ties, identified as a foreign adversary in Title 15 of the Code of Federal Regulations. The bill aims to safeguard U.S. national security from threats posed by apps like TikTok, according to its proponents.
The legal battle over TikTok is anticipated to be drawn out, with the federal appeals case potentially reaching the Supreme Court, which is expected to uphold the legislation given its current composition.
While the judicial branch may not directly influence U.S.-China policy as the executive and legislative branches do, its interpretations of the constitution can subtly shift the power dynamics, indirectly impacting the U.S.’ approach to China. The court’s decision could bolster presidential authority in defining national security threats, potentially leading to a more dominant executive branch, especially in China-U.S. relations.
The TikTok ban illustrates legislation that could significantly enhance presidential authority in matters of national security. By allowing the president to designate platforms as “controlled by a foreign adversary,” the bill provides executive power to regulate or censor content from deemed threatening platforms.
The implications of the TikTok case on presidential authority are reminiscent of the landmark Goldwater v. Carter case from over four decades ago, where President Jimmy Carter’s termination of diplomatic ties with Taiwan sparked a legal battle over executive power in foreign affairs.
Compared to Goldwater v. Carter, the TikTok ban presents a different scenario with potential international ramifications. Upholding the ban would not only strengthen the court’s role in foreign affairs but also consolidate inherent presidential powers, particularly in dealings with China.
Unlike Goldwater v. Carter, which focused on treaty termination, the TikTok case delves into national security concerns, making it more likely for courts to align with Congress and the president on such matters. Upholding the TikTok ban would empower the president to designate Chinese-affiliated technology companies as security threats, boosting their offensive power in foreign policy.
The judicial actions in the TikTok case could inadvertently strengthen executive power at both the national and state levels, potentially legitimizing legislation framed around anti-China narratives.