January 16, 2025
What can either Biden or Trump do to “save TikTok” before the ban takes effect in three days? Well – it depends on what your definition of “save” is. Can either of them throw out the law altogether? No. But there is an option a president can take that’s totally legal to make the ban go away.
This is a long video – but it’s important for you to understand the actual law – not the hype and not the speculation. So please just hang with me here.
By now you’ve seen the headlines that the Biden administration is now looking for ways to keep TikTok from going dark and that president-elect Trump is working on some kind of executive order. The thing is – those are headlines. They’re meant to catch your attention – but when you look under the hood of most of that reporting – you will quickly understand that things might not be what they seem. So, I am going to give you the real options available to the president in this video. But side note — let’s not forget that both trump and Biden took real steps to ban TikTok – and now that the ban is real — they’re changing their tune. We’ll deal with that back and forth from both of them on another day.
On this day – three days away from a TikTok ban – I’m going to talk you through board in and I’m going to explain those presidential options. But if you take away nothing else from this video I want you to understand no matter what it is — presidential actions are powerful – but a president does not have the power on his own to just throw out a law that was passed by an overwhelming bipartisan majority of congress especially if that law is determined to be constitutional by the united states supreme court. That’s not how it works. The justices have not said one way or another if the Protecting Americans from Foreign Adversary Controlled Applications act is constitutional yet but if they did which is a possibility there is no *legal* or practical way for any president to erase the law and pretend like it never happened. That’s not a thing. But if the president complies with the law that bans TikTok – now we’re cookin’ with gas because if the president gets creative there is an escape hatch that congress wrote into the law that lots of people are missing or misunderstanding.
To the board.
Today is January 16th. The TikTok ban takes effect Sunday January 19th. That’s 3 days away. I don’t expect we are going to hear about any solid actions to “save TikTok” from either president Biden or president elect Trump until we first hear from the United States supreme court. And that can come any time in here.
As I have reported before—the supreme court technically has four options.
Option two – the Supreme Court can say it’s too hot in the kitchen this whole TikTok issue is too big for us to rush. We need more time – we’re going to issue an injunction or an administrative stay on the TikTok ban for a certain amount of days or months until we can figure this out.
Option three – the supreme court can say the law that bans TikTok is constitutional and the ban can happen on January 19th.
And option four is the justices don’t issue a ruling before the ban takes effect – which in affect is a ruling.
Option two, three and four — bring Biden, Trump – and potentially congress into the conversation to figure it out. Let’s talk about the presidential options. What does “figuring it out” look like?
Again –remember options two three and four mean the ban is in play…it’s not going away. But if the president complies with the law – there’s a presidential escape hatch that was written into it. To understand what I’m about to tell you –you need to remember that the whole point of this law was to force TikTok’s Chinese parent company Bytedance to sell the US operations as a qualified divestiture – and if they didn’t they would face a ban.
Section two, paragraph 6 lines one and two in the law that bans TikTok uses a lot of fancy and confusing language just to say in order to have a qualified divestiture — the foreign adversary controlled application – specifically TikTok – can no longer be “controlled” by the foreign adversary and once that transfer of control happens the entity that controls the app cannot cooperate with the foreign adversary. But the only person who can decide whether the divestiture or sale of TikTok meets the terms of qualified divestiture is the president of the United States. Congress does not get to make that decision. The president does. The fact is – that definition of qualified divestiture is up to what the president says it is. Does that make sense?
Now it’s also true that there is another clause in the law that allows a president even president Biden to extend the ban by 90 days. Senators that support the TikTok ban say the law is clear that the president can only issue that one-time 90-day extension if those divestiture or sale negotiations of TikTok have “significantly advanced” and the sale could “likely close” within that timeframe. Senators who are critics of the TikTok ban law say that’s not really not how they interpret the extension clause – they said because there are serious people who want to buy TikTok that should be enough for president Biden to exercise the 90-day extension. We’ll have to see which side president Biden takes.
But let’s talk about what happens once trump takes office. Of course that will be a day and a half after TikTok “goes dark” which brings up a whole nother can of worms – but let’s set that aside for a second. Remember I said the president can get creative and save TikTok by complying with the law? Well president trump could say now that he’s in office — he’s looked at the situation and he thinks project Texas — TikTok’s state of the art security system that already exists to store and protect all US user data on oracle servers on us soil in the state of Texas is enough in his mind to reach that national security threshold. Or TikTok US could do some kind of creative internal corporate restructuring and Trump could say yeah – I think that’s enough. That satisfies my national security concerns. Draw up the paperwork – the app stays. It’s over. The ban is off the table. In those cases he’s “saved TikTok” nothing changes and he’s complied with the law. Do you see what I mean?
Now of course – no one expects it to be that easy. What’s more likely is trump could say once he takes office — he wants a deal where some American billionaire or American company buys TikTok and that’s the only way he as the president will say the divestiture of TikTok complies with national security and that’s the only way it can stay. Now – in that case we already know China is not allowing TikTok’s algorithm to be sold to anyone – so without the algorithm TikTok is not TikTok and the app would not be the same app we know regardless of who owns it.
Enter congress. Under supreme court option three– a stay or injunction which would pause of the ban — that would also gives congress some time to do something to pause or overturn the law that they passed last year that created this whole mess. It’s clear there is momentum forming to do something – whether it’s enough to pass a new law? We’ll have to wait and see.
One more option I want to bring up – which I’ve talked about before. Is trump’s option to just tell his incoming attorney general no not enforce the law or the TikTok ban. That would mean that TikTok could stay operational after Sunday and no American company would incur any of the devastating fines. Trump can do that once he takes office “a day and a half after the ban takes effect.” Is it legally problematic? Yes. Is it a good look for the brand new attorney general — the top law enforcement official in the country to not enforce a law? I’ll let you decide that.
But the fact is – there are options to “save TikTok” we’ll just have to wait and see which one either president or congress takes.
