Adam—Once again, your finger is on the pulse. On Thursday, Trump filed an amicus brief in the TikTok case up at SCOTUS. Highlighted copy attached. It’s a hoot.
His pitch is simple: This is a political issue that involves national security and foreign policy. These are the job of the president, and if you allow TikTok to be shut down the day before I’m sworn in, you’ll undermine my ability to execute my constitutional functions and negotiate a deal. Why wade so hastily into the difficult issues of free speech and the executive function? Put it on ice, and give me a chance to fix it! Along the way, he repeatedly mentions the Brazilian X ban and the coercive tactics used against Facebook, Twitter, etc. during COVID and the Hunter Biden debacle.
Remember—the question SCOTUS has agreed to decide is whether the “sale-or-ban law” violates the First Amendment. Trump’s amicus raises a different question: whether the law violates Article II by allowing Congress to infringe on Presidential powers. It’s an interesting move because, although SCOTUS generally limits itself to the questions actually presented (here, the First Amendment), nothing prohibits it from considering other issues. Time will tell whether SCOTUS gives Trump’s Article II arguments any attention. Oral argument will clue us in.
Here’s my speculation: SCOTUS will have to decide weighty questions, but the odds are against them staying the statutory deadline. After all, SCOTUS has accelerated the case and signaled that they’ll decide it quickly. So I don’t see them delaying a duly enacted statute even by one day. It’s certainly possible, but I think the greater likelihood is that they’ll just render an expedited substantive decision on or before January 19.
Despite my speculation, I must note that courts love to avoid deciding weighty issues if they can get away with it—so there’s still a chance that SCOTUS would say, “What’s the harm in a short reprieve? Maybe Trump will moot the whole thing and we can remain silent.” It could definitely happen, but I think the odds are against it.
All of this is to say that I think you’re right once again: Unless the statute is struck down as unconstitutional,* the problem will loom until Trump is sworn in. And if the problem looms, Trump will be the one to fix it.
*Striking a statute is usually a tall order, but SCOTUS seldom decides to review a law unless at least four Justices have genuine concerns.
Welcome home—we saved the nicest weather for you.
**—Rob**