Trump’s Continuing Illegal Refusal to Enforce the TikTok Ban
This executive branch precedent will have long and bad legs.
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President Trump today issued a new executive order that extended two prior executive orders that declined to enforce the Protecting Americans From Foreign Adversary Controlled Applications Act, i.e., the TikTok ban. That statute made it unlawful, as of January 19, 2025, for U.S. firms to provide services to distribute, maintain, or update TikTok unless its operation in the United States is severed from Chinese control. The administration’s serial refusal to enforce the TikTok ban, and its related efforts to immunize providers from the effects of the law, are blatantly unlawful. Below I explain why and assess implications.
The Non-Enforcement Orders
The Supreme Court rushed to uphold the constitutionality of the TikTok ban on January 17. On January 19, the day the law came into effect, TikTok stopped working for U.S. users but then “flickered back to life … after President-elect Donald J. Trump said that he would issue an executive order to stall a federal ban of the app.”
The next day, January 20, Trump issued an executive order that instructed the attorney general to not enforce the act for 75 days so that Trump could assess the foreign policy implications of the ban and negotiate a workaround. The president also ordered the attorney general to take steps to immunize the private firms from any liability by suspending enforcement and penalties, including retroactively to January 19; by telling providers that they had not violated the statute and would face no liability for acting contrary to it; and by claiming that the president’s enforcement discretion precludes—because of unexplained and clearly spurious national security concerns—states or private entities from suing violators of the act.
The attorney general apparently communicated to the relevant firms concerning their non-liability. President Trump extended the non-enforcement directive on April 4 until today.
Today the President “further extended” the original executive order “until September 17, 2025”—that is, 90 days this time instead of 75. The statute establishing the TikTok ban authorized the president to grant a “1-time extension of not more than 90 days with respect to the date on which this subsection would otherwise apply to” Tik Tok only if the president certifies to Congress concrete progress toward divestiture of TikTok—including “binding legal agreements to enable execution” of divestiture “in place.” There has been talk of divestiture negotiations between ByteDance and Oracle. But as of the writing I have seen no reporting that suggests the president has certified anything to Congress. And it doesn’t matter even if he did meet the statutory criteria and certify now, since the extension only applied to the first 90 days after January 19, 2025.
The Take Care Clause and Enforcement Discretion
The Take Care Clause says that the president “shall take Care that the Laws be faithfully executed.” The Clause has a protean quality. It is the source of the president’s duty to comply with the law and a source of the president’s power to interpret and enforce the law. It is also the basis for the president’s discretion over law enforcement, criminal and civil. As the Court said in Trump v. United States, quoting Transunion, “Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’”
The Court has given the executive branch very wide latitude in its exercise of enforcement discretion, often through the assumption that Congress in enacting statutes implicitly provided for that discretion. And the executive branch has exploited this latitude. As Zachary Price in his definitive treatment documented, discretion to not enforce the law lay behind many of President Obama’s most controversial policies, including the refusal to enforce certain marijuana laws, and the policies to delay enforcement of aspects of the Affordable Care Act, and to decline to remove certain undocumented immigrants who entered the United States as young children.
Price noted in 2014 that the Obama assertions of enforcement discretion “are not unique” and that the “practice of executive policymaking through nonenforcement stretches back across recent administrations.” And the Trump administration has continued this trend in 2025 in its pausing of enforcement of the Foreign Corrupt Practices Act and its deprioritizing of the enforcement of the Foreign Agents Registration Act and federal regulations that carry criminal penalties.
As I recently explained, the Court has justified this wide presidential latitude to enforce the law “as a pragmatic accommodation of (i) inevitable enforcement choices and tradeoffs in the face of over-legalization by Congress, (ii) changing public-welfare needs, (iii) executive branch resource constraints, and (iv) the judiciary’s ‘lack [of ] meaningful standards for assessing the propriety of enforcement choices.’” The controversial examples above tended to be justified by presidents on the basis of some combination of enforcement prioritization and resource constraints.
And yet there are limits. The Supreme Court’s classic statement on limits came in 1838 in Kendall v. United States. There the Court stated: “To contend that the obligation imposed on the President to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the constitution, and entirely inadmissible.” It denied that the Take Care Clause gave the president a “dispensing power”—“the authority to license illegal conduct”—or “power to forbid [the laws’] execution.” More recently, the Court in Heckler v. Chaney (1985) stated that federal agencies cannot “‘consciously and expressly adopt[] a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” And the Court said in United States v. Texas (2023) in a standing context that “an extreme case of non-enforcement arguably could exceed the bounds of enforcement discretion.”
It has never been clear where the line is between the president’s broad permissible enforcement discretion and a president’s illegal refusal to enforce the law. As OLC once said, “The open-ended nature of the inquiry under the Take Care Clause—whether a particular exercise of discretion is ‘faithful[]’ to the law enacted by Congress—does not lend itself easily to the application of set formulas or bright-line rules.”
But wherever that line is, and there is a line, the refusal to enforce the TikTok ban crosses it.
The TikTok Ban Non-Enforcement
The administration has not sought to justify its non-enforcement in resource constraints or enforcement tradeoffs. The only justifications, announced in the first EO on the matter, are that the statute’s going into effect on January 19 “interfere[d] with [the president’s] ability to assess the national security and foreign policy implications of the Act’s prohibitions before they take effect” and a desire to “pursue a resolution that protects national security while saving a platform used by 170 million Americans.” But Congress and President Biden assessed the national security implications of the act in the legislation itself, which in no way implicates an exclusive presidential national security power. And the president’s desire to save the platform is merely a substantive disagreement with the policy of the statute.
The refusal to enforce the TikTok ban is unlawful because it is a refusal to enforce a law simply on the ground that the president does not like it. As noted above, and making this illegal non-action much worse, the administration in the original EO and the one issued today sought to ensure that private firms can never face any liability for violating the statute. This is a clear example of the dispensing power that Kendall forbade.
Trump’s moves extend far beyond non-enforcement and amount to a claim that the president has authority, at the flick of a pen, to destroy all consequences of a law enacted by Congress and upheld by the Supreme Court. Litigation over the administration’s steps with regard to the TikTok ban would be important in establishing limits on the president’s enforcement discretion, especially the purported authority to guarantee private parties that they may violate a law with impunity. But to date no one has sought to sue the federal government for its non-enforcement and I know of only one lawsuit against a private firm in connection with noncompliance with the ban. One big problem, as Alan Rozenshtein has explained, is that it is unclear whether anyone has standing to sue.
Congress and the Future
Republicans’ and conservatives’ heads exploded when the Obama administration exercised broad enforcement discretion to serve its controversial policy aims, as described above. Some of those instances of non-enforcement were indeed close to the line but at least claimed justification under the traditional criteria of policy priorities and resource constraints (and, sometimes, statutory interpretation). None was like what Trump is doing with the TikTok ban.
Republicans in Congress have been craven in reacting to the president’s murder of the TikTok ban. Consider these recent statements, at the dawn of the second non-enforcement extension, by Republican senators.
Sen. Kevin Cramer recently stated: “We can't wait forever. We passed a law. It is the law.” Majority Leader John Thune said that he is “hoping that the negotiations on a buyer are making headway enough” to find a match and that he had to “think about” whether there should be a further delay. Sen. Chuck Grassley: “Since it’s been extended … already without repercussions, I just want finality. I want some certainty, and just know that the Congress isn't being played, when we’ve made a decision [that the app be sold].” Sen. John Cornyn: “[I’d] like to see the law go into effect.” Sen. Josh Hawley: “I’m not a big fan of the extending because it reduces our leverage.” Sen. Ted Cruz, when asked what Congress can do to make the administration comply with the ban: “One step at the time.” Sen. Roger Wicker: “I’m not overly delighted. I don’t think it’s a good idea.” Sen. Ron Johnson: “I couldn’t care less.”
These pathetic words—and they are only words—come against the background of the administration, at least as of April, not even briefing Congress on its divestiture or other plans related to TikTok. The administration has eliminated an important law that Congress enacted by a large bipartisan majority. And Congress as an institution is doing nothing in response. Sen. Hawley said of the non-enforcement of the ban in April: “Congress, we don’t have an enforcement arm of our own.” That is an astonishing statement, since Congress has plenty of tools—appropriation and confirmation threats, subpoenas, hearings, the leverage of the big beautiful bill and other laws the administration wants, impeachment, and more—should it wish to protect the integrity of its lawmaking power from executive abuse. But of course it lacks anything close to institutional will to deploy these tools against the Trump administration. This is of a piece with Congress’s pitiful refusal to respond to the diminution of other important institutional prerogatives, such as the Trump administration’s aggressive gutting of its appropriation power.
If Congress will not defend its constitutional prerogatives then those prerogatives will wither. And for Republicans who abhorred Obama’s more modest but still-aggressive uses of enforcement discretion yet who today sit on their hands as President Trump wields a more aggressive power, the bite will come when the next Democratic administration invokes the Trump administration’s TikTok non-enforcement as justification for not enforcing, or for wiping out the effects of, all manner of laws that Republicans love but Democrats despise.
Thanks to Marty Lederman for comments.