Tik Tok has Cracked the U.S. Constitution, Why Doesn’t Anyone Care?

By: Jared Fischer

Edited by: Lauren Levinson and anna dellit

Today, you don’t have to use TikTok to understand the mobile app’s importance. The popular Chinese-owned social media platform boasted 170 million active American users as of January 2024, and has been the topic of much discourse as its popularity has grown. [1] Federal officials initially raised concerns about TikTok and its parent company, ByteDance, in July of 2020, when then Secretary of State Mike Pompeo first announced that the U.S. was considering banning the app from American users, citing concerns about data theft and content censorship by Chinese government officials. [2] Since then, TikTok has been subject to multiple federal investigations, Congressional probes, and even outright bans. In an extremely polarized America, the issue seemingly defies political conventions––the app has been criticized by members of both major American political parties and bans have been attempted by both Republican and Democratic administrations. Still, few government officials, outside of vague platitudes, have been overly forthcoming about the specific national security threats posed by TikTok. Today, although the platform is technically banned in the U.S., TikTok remains operational due to President Joe Biden and President Donald Trump’s decision to not enforce the legislation banning the app, legislation that they each once supported. 

1. Background

The first time the Federal Government attempted to ban TikTok was in 2020. Soon after Secretary of State Pompeo’s initial announcement about the potential national security concerns associated with TikTok’s, on August 6, 2020, President Trump signed an executive order banning Tik Tok, as well as the Chinese messaging app, We Chat, from operating in the U.S. if not sold to an American company. [3] The President’s executive action was met with legal challenges from both apps, with TikTok claiming Trump’s executive order to be unlawful on multiple fronts. [4] First, TikTok argued that the International Emergency Economic Powers Act (IEEPA), the piece of legislation Trump claimed gave him the authority to ban the platform without Congress, specifically prevents the kind of action that Trump was aiming to accomplish by banning TikTok. The IEEPA was passed by Congress in 1977 and signed into law by President Jimmy Carter. The Act gives the President special powers to regulate international commerce during national emergencies. As such, it was under the jurisdiction of the IEEPA that Trump aimed to force ByteDance’s sale of TikTok. However, the IEEPA specifically prohibits the President from using the Act to limit access to foreign materials covered by the First Amendment, including personal communications technology, which TikTok argued included its social media platform. [5] Additionally, TikTok claimed Trump’s executive order violated its 5th Amendment right to due process. [6]

TikTok’s lawsuit against the Trump administration never came to fruition, however, as on September 27, the day before the first stages of the ban were set to begin, a federal judge granted the platform an injunction against the presidential order calling for its sale. [7] In his decision, Judge Carl Nichols of the United States District Court for the District of Columbia concluded that the TikTok’s lawsuit against Trump was likely to succeed on the merits, given the IEEPA’s prohibition on executive action against communications technology. Judge Nichols also appeared to agree with TikTok’s 5th Amendment argument, citing the executive order’s potential to “erod[e] TikTok’s competitive position.” [8] Then, in June of 2021, newly elected President Biden revoked the original Trump executive order seeking to ban TikTok. [9] Consequently, TikTok v. Trump was dismissed. [10]

2. Congress Intervenes

Despite President Biden’s intervention to end his predecessor’s move to force TikTok’s sale to an American company, Biden did not rule out future action to restrict the app’s presence in the United States. For instance, in December of 2022, Biden signed the No TikTok on Government Devices Act, included in that year’s omnibus budget bill, which prohibits the use of TikTok on government devices. [11] Many state governments have since adopted similar legislation. Additionally, throughout Biden’s presidency, numerous acts were introduced in Congress aimed at limiting social media corporations’, including TikTok’s, ability to access user data. Finally, in April of 2024, the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA) was signed by President Biden. PAFACA, similar to Trump’s 2020 executive order, seeks to ban TikTok from the U.S., unless ByteDance divests of its controlling share in the platform. [12] Again, little evidence was made available to the public regarding the security risks presented by the app, though PAFACA’s bipartisan support in both The House of Representatives and the Senate, to many Americans, suggested valid concern. According to PAFACA, if TikTok was not sold to an American owner by January 19, 2025, the app would become unavailable to users in the United States.

3. TikTok v. Garland

Only a few weeks after Congress moved to force TikTok’s divestiture from ByteDance, the company filed suit against the U.S. Government. Unlike TikTok’s case against Donald Trump, however, the platform was left with fewer avenues of dispute. In the app’s 2020 suit, TikTok argued that Trump, as President of the United States, lacked the authority to ban TikTok through executive action. However, since Congress adopted PAFACA, TikTok could no longer use that reasoning. Instead, in 2024, the platform’s central argument against its forced sale rested on Americans’ 1st Amendment rights. TikTok contended that since PAFACA constituted a de-facto ban of the app’s operations in the United States, that it worked to suppress free expression. [13]

Once it became clear that the fate of TikTok would be determined by the Supreme Court, many major civil liberties and 1st Amendment advocacy groups voiced their support for TikTok’s argument, including the American Civil Liberties Union and the Foundation for Individual Rights and Expression (FIRE). In its amici curiae brief to the Court, FIRE specifically pointed out that the government had yet to provide the public substantial evidence on the dangers TikTok posed to Americans, while also explaining that upholding legislation banning the app would counter almost 250 years historical protections for free speech. [14] However, the Supreme Court did not see eye-to-eye with outside civil liberties advocates. In a rare unanimous decision, the Court upheld PAFACA. The Court reasoned that since PAFACA only aims to regulate TikTok’s ownership, not content, that it does not violate the 1st Amendment, even if its de-facto effect is the removal of a major mode of online expression.  [15]

4. Political Football

The federal reaction to the Supreme Court’s decision broke along political lines, informed by the radically reshaped electoral dynamics of the 2024 presidential election. While PAFACA enjoyed bipartisan support when it was adopted, seemingly neither party wanted to own its outcome. The Democrats, reeling from their loss of both chambers of Congress and the Presidency, partially due to declines in support from young people, were not keen to be seen as the party that had banned TikTok, despite the fact that it was President Biden that had signed the legislation banning the app. The Republicans, on the other hand, hoping to retain their newfound Gen. Z support, as well as in recognition of the utility of TikTok as a political messaging platform, also showed little motivation to own the ban, despite the party’s hawkish posture towards China. The date of the ban’s commencement, January 19, 2025, was also awkward, being Joe Biden’s last day as President of the United States before handing the White House over to Trump’s second term. With these factors in mind, Biden made the decision to refuse to enforce the Supreme Court’s ruling on TikTok, practically (and, arguably, unconstitutionally), vetoing a law he himself had signed. Despite Biden’s assurances, TikTok did go dark for around twelve hours, only to be revived, ostensibly by President Trump, who extended PAFACA’s allowance of a 90-day extension to the law’s sell-by date in order to facilitate a sale, despite no public knowledge of a live deal. [16] As of April 2025, TikTok continues to be available in the United States.

The executive decision not to enforce rulings made by the Supreme Court is not completely unprecedented in American history. Famously, Andrew Jackson, the President of the United States from 1829-1839, is once thought to have said “John Marshall [the then Chief Justice of the Supreme Court] has made his decision, now let’s see him enforce it,” in response to the Supreme Court’s decision in Worcester v. Georgia, which sought to prevent the forced removal of the Cherokee Tribe from the state, though historians debate whether he actually used these words. [17] Yet, rebuking the authority of the Supreme Court has taken on new salience in recent years. Among American progressives, perception that the Court is unfairly slanted towards conservative opinion has made questioning the legitimacy, utility, and structure of the Supreme Court normal conversation. Additionally, even before Biden refused to enforce the Court’s decision in TikTok v. Garland, the President made a show of his disagreement with the Court on the topic of student loan debt forgiveness, though he complied with the Court in reality. [18] Today, many have pointed out President Trump’s apparent willingness to violate court decrees, especially in relation to the unprecedented levels of constitutionally dubious executive action favored by his administration. The Supreme Court’s salience in American life has grown increasingly heavy as Congress has shied away from its role as the sole federal law-making body in the United States. As long as Congress refuses to make hard decisions and relies on the Supreme Court to resolve the country’s pressing policy crises, questioning and disobeying the decisions of the Court threatens to become a common phenomenon in American political life.  

Notes:

1. TikTok Newsroom Staff. “TikTok CEO’s Show Chew’s Opening Statement.” Tik Tok Newsroom, January 31, 2024. https://newsroom.tiktok.com/en-us/opening-statement-senate-judiciary-committee-hearing.

2. Arjun, Kharpal. “U.S. is 'looking at' banning TikTok and Chinese social media apps, Pompeo says.” CNBC, July 7, 2020. https://www.cnbc.com/2020/07/07/us-looking-at-banning-tiktok-and-chinese-social-media-apps-pompeo.html. 

3. Carvajal, Nikki and Caroline Kelly. “Trump issues orders banning TikTok and WeChat from operating in 45 days if they are not sold by Chinese parent companies.” CNN, August 8, 2020. https://www.cnn.com/2020/08/06/politics/trump-executive-order-tiktok/index.html. 

4. International Emergency Economic Powers Act, 50 U.S.C. § 35 (1977).  

5. TikTok v. Trump, No. 2:20-cv-7672, U.S. District Court, Central District of California. 

6. U.S. Constitution Amend. V.  

7. Isaac, Mike and David McCabe. “TikTok Wins Reprieve from U.S. Ban.” The New York Times, September 27, 2020. https://www.nytimes.com/2020/09/27/technology/tiktok-ban-ruling-app.html/. 

8. Tik Tok v. Trump, No. 1:20-cv-02658, U.S. District Court, District of Columbia.

9. Allyn, Bobby. “Biden Drops Trump’s Ban on TikTok And WeChat –– But Will Continue The Scrutiny.” NPR, June 9, 2021. https://www.npr.org/2021/06/09/1004750274/biden-replaces-trump-bans-on-tiktok-wechat-with-order-to-scrutinize-apps. 

10. Joint Stipulation to Dismiss, Tik Tok v. Trump, No. 1:20-cv-02658, U.S. District Court, District of Columbia.

11. No TikTok on Government Devices Act, 44 U.S.C. § 3553 (2022).

12. Protecting Americans from Foreign Adversary Controlled Applications Act, 15 U.S.C. § 9901 (2024). 

13. TikTok v. Garland, 604 U.S. ___ (2025).

14. Brief for the Foundation for Individual Rights and Expression as Amicus Curiae, TikTok v. Garland, 604 U.S. ___ (2025).

15. TikTok v. Garland, 604 U.S. ___ (2025).

16. Protecting Americans from Foreign Adversary Controlled Applications Act, 15 U.S.C. § 9901 (2024). 

17. Garrison, Tim. "Worcester v. Georgia." New Georgia Encyclopedia, Feb 20, 2018. https://www.georgiaencyclopedia.org/articles/government-politics/worcester-v-georgia-1832/. 

18. Wall Street Journal Editorial Board. “Biden’s Student Loan Boast: The Supreme Court ‘Didn’t Stop Me’.” The Wall Street Journal, February 23, 2024. https://www.wsj.com/articles/joe-biden-student-debt-forgiveness-supreme-court-0c5204fe. 

Bibliography:

Allyn, Bobby. “Biden Drops Trump’s Ban on TikTok And WeChat –– But Will Continue The Scrutiny.” NPR, June 9, 2021. https://www.npr.org/2021/06/09/1004750274/biden-replaces-trump-bans-on-tiktok-wechat-with-order-to-scrutinize-apps.

Arjun, Kharpal. “U.S. is 'looking at' banning TikTok and Chinese social media apps, Pompeo says.” CNBC, July 7, 2020. https://www.cnbc.com/2020/07/07/us-looking-at-banning-tiktok-and-chinese-social-media-apps-pompeo.html.

Carvajal, Nikki and Caroline Kelly. “Trump issues orders banning TikTok and WeChat from operating in 45 days if they are not sold by Chinese parent companies.” CNN, August 8, 2020. https://www.cnn.com/2020/08/06/politics/trump-executive-order-tiktok/index.html.

Garrison, Tim. "Worcester v. Georgia." New Georgia Encyclopedia, Feb 20, 2018. https://www.georgiaencyclopedia.org/articles/government-politics/worcester-v-georgia-1832/. 

Isaac, Mike and David McCabe. “TikTok Wins Reprieve from U.S. Ban.” The New York Times, September 27, 2020. https://www.nytimes.com/2020/09/27/technology/tiktok-ban-ruling-app.html/.

TikTok Newsroom Staff. “TikTok CEO’s Show Chew’s Opening Statement.” Tik Tok Newsroom, January 31, 2024. https://newsroom.tiktok.com/en-us/opening-statement-senate-judiciary-committee-hearing.

Wall Street Journal Editorial Board. “Biden’s Student Loan Boast: The Supreme Court ‘Didn’t Stop Me’.” The Wall Street Journal, February 23, 2024. https://www.wsj.com/articles/joe-biden-student-debt-forgiveness-supreme-court-0c5204fe.