Trump’s Utterly Bizarre Message to SCOTUS in the TikTok Case
He wants the Supreme Court to defer to him as if he were already in power.
ON FRIDAY, THE SUPREME COURT WILL HEAR oral argument in TikTok v. Garland, a First Amendment challenge to the Protecting Americans from Foreign Adversary Controlled Applications Act. Enacted in April 2024, the law makes it illegal for third-party service providers such as Google and Apple to host or update a “foreign adversary application” for mobile phones in the United States. In effect, the law bans companies from offering TikTok in their app stores for U.S. users so long as TikTok is still owned by ByteDance, which is incorporated in the Cayman Islands but operates out of China.
Although former President Donald Trump issued an executive order in 2020 directing ByteDance to divest itself of TikTok in the United States, his amicus brief in the Supreme Court, filed late last month, does an about-face, urging the Court to pause the legislation and step aside from deciding the dispute on the risible constitutional theory that Trump himself has the unique skills and prerogative to resolve it.
For those who continue to pretend that we are not at risk of careening into authoritarianism—or worse—this filing should be a final wakeup call.
BEFORE WE GET TO THE TRUMP BRIEF, a little background: The U.S. government has long been concerned that, because ByteDance does not operate independently from the Chinese government, its ownership of the TikTok algorithm poses a severe national security threat through the collection of vast swaths of American citizens’ data and control over TikTok’s content. The law seeks to prevent China from covertly manipulating TikTok’s gargantuan reach as a means of strengthening its global political posture and sowing discord among Americans.
In order to keep TikTok afloat in the United States, ByteDance must sell it to an American or allied company before January 19, 2025. If it doesn’t, Americans will continue to have access to TikTok on their phones but won’t be able to update the app. It is because the law binds companies like Apple and Google that the app will eventually cease to work in the United States; the law does not directly ban TikTok itself.
TikTok and a handful of individual app users sued, claiming that the law infringes on free speech. Last month, the U.S. Court of Appeals for the D.C. Circuit sided with Congress; the Supreme Court granted TikTok’s extraordinary request for an extremely expedited appeal.
The Justice Department argues that there is no First Amendment problem because ByteDance is a foreign company that operates in China and not the United States, and TikTok has no First Amendment right to be controlled by China. Nor do TikTok users have a right to post their content on a “platform controlled by a foreign adversary.” And even assuming the First Amendment did apply, the government adds, the “grave national-security threats” posed by TikTok under ByteDance’s ownership would outweigh any free speech concerns.
TikTok responds that Congress is unfairly and unconstitutionally singling it out, that it’s impossible for ByteDance to sell TikTok to a U.S. company before January 19, and that any national security concerns could be fixed with a simple warning to American users that the U.S. government is worried that China could manipulate their data.
In the “Brief of President Donald J. Trump as Amicus Curiae Supporting Neither Party”—which was filed by John Sauer, Trump’s nominee for solicitor general (who successfully argued the criminal immunity case Trump v. U.S. on his behalf)—Trump claims to take no position on the First Amendment question. Yet he urges the Court to “stay the statute’s effective date to allow his incoming Administration to pursue a negotiated resolution that could prevent a nationwide shutdown of TikTok, thus preserving the First Amendment rights of tens of millions of Americans, while also addressing the government’s national security concerns.”
Bear in mind that Trump is making this unprecedented request purely as a private citizen. He has zero legal authority under Article II of the Constitution in this moment—and will continue to have none when the justices hear oral argument this week.
Even more notable is the fact that the Supreme Court has no authority under the Constitution to simply “stay” legislation passed by Congress and signed into law by the actual sitting president of the United States, Joe Biden, unless that law is found to violate the First Amendment—which is far from evident and cannot be feasibly resolved in any event before January 19, when the law takes effect.
The feebleness and audacity of Trump’s brief would be astonishing coming from any Supreme Court litigant, let alone a president-elect. Sauer argues that “as the incoming Chief Executive, President Trump . . . is the right constitutional actor to resolve the dispute through political means.” The cascade of constitutionally preposterous chutzpah speaks for itself:
Through his historic victory on November 5, 2024, President Trump received a powerful electoral mandate from American voters to protect the free-speech rights of all Americans—including the 170 million Americans who use TikTok. . . .
Further, President Trump is the founder of another resoundingly successful social-media platform, Truth Social. This gives him an in-depth perspective on the extraordinary government power attempted to be exercised in this case—the power of the federal government to effectively shut down a social-media platform favored by tens of millions of Americans. . . .
In light of these interests—including, most importantly, his overarching responsibility for the United States’ national security and foreign policy— President Trump opposes banning TikTok in the United States at this juncture, and seeks the ability to resolve the issues at hand through political means once he takes office. On September 4, 2024, President Trump posted on Truth Social, “FOR ALL THOSE THAT WANT TO SAVE TIK TOK IN AMERICA, VOTE TRUMP!” . . .
Furthermore, President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government—concerns which President Trump himself has acknowledged. . . .
Indeed, President Trump’s first Term was highlighted by a series of policy triumphs achieved through historic deals, and he has a great prospect of success in this latest national security and foreign policy endeavor.
This is a breathtaking view of presidential power—or not-yet-presidential power, as it were. And it is not based on anything remotely resembling actual law.
The only legal authority Sauer cites for the proposition that Trump is the boss of everything and everybody—including Congress and the Supreme Court—is Anderson v. Celebrezze, which he quotes as stating that “the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation.” But that case does not stand for the absurd proposition that presidents are kings because they alone are subject to nationwide voting. It involved a challenge to Ohio’s early statutory deadline for presidential candidates to get on the general election ballot. Sauer basically plucks out a generic line from that opinion as a pretense for arguing, in essence, that there’s a new sheriff in town and everyone else better back off and let Trump do what he sees fit with China.
During normal times, the Supreme Court would treat this rather embarrassing piece of legal writing as a throwaway. It certainly deserves to be laughed out of court and mocked in the court of public opinion. But these are not normal times, and this is not a normal Supreme Court majority. After all, last summer it gifted Trump the constitutional right to commit crimes using the powers of the Oval Office—a right that appears nowhere in the Constitution itself and contradicts its text. Yet like Trump himself under Trump v. U.S., the justices are unaccountable, and they know it—even if they violate the Constitution itself.
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