
Jaap Arriens/NurPhoto via AP
The U.S. Supreme Court will likely undergo an even greater institutional stress test during President Donald Trump’s second term. Trump’s reaction to the recently concluded Supreme Court case about ownership of the social media giant TikTok has been particularly telling on this point.
The suit by TikTok challenged a law enacted last year that banned the app from operating in the U.S. unless its Chinese owner, ByteDance, sold it to a non-Chinese buyer within 270 days. Lawmakers have said the policy is necessary because China is a “foreign adversary,” and due to (classified) national-security concerns stemming from TikTok’s routine collection of Americans’ personal data, including from government workers and officials.
The companies ultimately lost the case, and the Supreme Court issued a January 17 ruling upholding the law—which meant that as of the January 19 deadline, it became illegal for TikTok to continue operations, and illegal for other companies to work with them.
Yet, as things stand, Trump has effectively instructed a private company to break federal laws, and to violate a fresh-off-the-press Supreme Court order. “It’s basically saying, there is a law that has passed that I don’t think should be a law, and therefore my enforcers will not enforce it,” said Zephyr Teachout, a law professor at Fordham University and a former antitrust enforcer at the New York attorney general’s office, on a recent episode of the Organized Money podcast.
Trump and the company telegraphed their intentions quite openly and plainly, in worldwide press releases. And, as of today, the president and his collaborators have carried out their plans, flouting Congress’s law and the Supreme Court’s order daily, in the most public manner possible, and apparently with total impunity.
Perhaps just as important, no one is even raising questions about what it means for the president to summarily overrule the justices, or whether the Court can or should have an opportunity to react. With other challenges to Trump actions sure to move through the court system, it’s an ominous sign for the Court’s legitimacy and its practical powers, even before you get to other questions about our traditional “separation of powers.”
THE FIRST COUPLE WEEKS OF TRUMP’S second presidency have been characterized by a series of unprecedented exercises of power, and an equally extraordinary attempt to arrogate even more powers to the office—and in the individual executive himself—not seen during any other administration in recent memory.
The administration has tried to freeze trillions in government grant money; fired and suspended hundreds of government workers, while trying to terminate as many as 200,000 in total; pardoned supporters who were convicted of conspiring against the United States and attacking the seat of government; rolled back long-standing civil rights protections; and sought to change the Constitution’s post–Civil War citizenship amendment in order to enable mass deportations.
And the White House has undertaken these massive policy changes largely unilaterally, by executive order. Trump himself has candidly admitted that some of the moves appear unconstitutional, that the administration fully expects lawsuits, and that their arguments will hopefully fall on kind ears at the Court.
Here’s how Trump responded last Monday when reporters asked about whether the birthright citizenship order is unconstitutional (as a federal judge held shortly afterward), for example:
“Could be. I think we have good grounds, but you could be right,” Trump said, according to a report by The Washington Post. “We’ll find out … People have wanted to do this for decades.”
No one is even raising questions about what it means for the president to summarily overrule the justices.
Many of the major policy changes are expected to end up before the justices. Courts have already blocked some of the central policies, including a conservative-appointed judge who remarked that the citizenship order was perhaps the most “blatantly unconstitutional” executive action he’d reviewed in more than four decades. The order to freeze federal spending was issued Monday night, challenged in federal court on Tuesday morning, blocked by the judge that afternoon, and was rescinded by the administration less than 24 hours later.
Meanwhile, administration officials have continued arguing that Trump has a mandate to implement whatever policies he sees fit, pointing to the simple fact that he won the election.
The president’s attorneys neatly summed up his stance upon taking office in a legal brief to the justices in the TikTok case, describing Trump in very intentional, highly unusual terms, as “the incoming embodiment of the Executive Branch.”
Although that case has concluded, the truly remarkable developments since then indicate that the Supreme Court’s legitimacy in the eyes of the public—and many public officials—will likely continue to plummet, and the Court will be assailed, from all sides, over the next four years.
CONGRESS SIGNED THE PROTECTING AMERICANS From Foreign Adversary Controlled Applications Act into law in April last year, with overwhelming bipartisan support. TikTok and ByteDance sued shortly afterward, arguing that the law violates First Amendment freedoms of speech, among other challenges.
A panel of judges on the Court of Appeals for the District of Columbia Circuit held unanimously that the law does not violate the Constitution, saying it was narrowly tailored to address the government’s legitimate national-security interests, and that the differential treatment of TikTok is justified by the unique circumstances. The judges also refused to grant the companies a temporary injunction that would have allowed TikTok to continue operations while it tried to appeal the ruling.
The Supreme Court took just two days to respond to TikTok’s petition, and put the case on an expedited schedule, partly because the law was set to go into effect about ten days afterward, but also an indication that the justices recognized the issues as particularly important.
Trump then intervened, filing an amicus brief asking the court to put the law on pause so that he—as the incoming embodiment of the executive branch—could work out a political solution; never mind that the legislative branch had already spoken, following months of deliberation and efforts to seek a solution.
“As the incoming Chief Executive, President Trump has a particularly powerful interest in and responsibility for those national-security and foreign-policy questions, and he is the right constitutional actor to resolve the dispute through political means,” Trump’s lawyers wrote in the brief. They added that he has an “in-depth perspective on the extraordinary government power attempted to be exercised in this case” given his ownership of the social media platform Truth Social, and then went on to argue that Trump alone should be permitted to exercise those extraordinary powers.
In fact, Trump had already made his interests in the lawsuit explicitly clear in an earlier Truth Social post, which was cited and linked to in the brief:
“For all of those that want to save TikTok in America, vote Trump!” the then-candidate said in September, omitting the fact that he had made vigorous efforts to ban the app, for the very same alleged national-security concerns, during his first administration. “The other side’s closing it up,” Trump added.
The Supreme Court ultimately rejected Trump’s request to put the law on hold.
The justices affirmed the lower court and upheld the law on January 17. That ruling settled the matter, for all intents and purposes: TikTok switched off its servers, and its partners, including cloud computing providers Oracle and Akamai, stopped providing services, NPR reported last week. But that’s when things got interesting.
The very next day, Trump—while he was still president-elect—effectively reversed the Supreme Court’s order with a concise missive posted on Truth Social, saying he would act to postpone the law and give the companies immunity, despite there being no legal authority to do so.
The app’s services were restored immediately afterward, according to another NPR report on January 19. (Some companies, like Apple and Google, continued to comply with the law, and TikTok remains unavailable on their app stores.) TikTok announced its comeback to its more than 100 million users with a pop-up message:
“As a result of President Trump’s efforts, TikTok is back in the U.S.!” the notice read.
There was in fact a legal means to delay enforcement. A provision in the law allows a president to extend the deadline for divestiture by 90 days, if they determine that a deal is close to being struck. But that is not what happened here.
Shortly after his inauguration, Trump signed an executive order that states, “I am instructing the Attorney General not to take any action to enforce the Act for a period of 75 days from today to allow my Administration an opportunity to determine the appropriate course forward.” This has nothing to do with the 90-day extension; it’s just a vow to not enforce. There is no legal authority to nullify an act of Congress, signed by the (previous) president, and upheld by the Supreme Court.
Yet there has been virtually no protest from the lawmakers who enacted this national-security prerogative to protect Americans from perhaps our most powerful congressionally designated “foreign adversary.”
And there has been no protest from the Court, even though justices have at times broken their typical practice to publicly comment on important separation-of-powers matters that arise within the other two branches, as when Chief Justice John Roberts admonished Trump during his first administration against claiming that there are Democratic judges and Republican judges.
To be sure, presidents of both parties sometimes exercise their prosecutorial discretion in ways that essentially permit some violations of law. But they generally do so to achieve crucial national goals, and usually backed by strong public-welfare arguments. Moreover, lawmakers from the opposing party almost always raise their voices in those instances.
Presidents also sometimes postpone enforcement of certain new laws, as when Obama famously delayed some requirements of the 2010 Affordable Care Act, but that’s usually to allow good-faith efforts to come into compliance, and assuming that nonenforcement doesn’t pose serious risks of harm. And, of course, Obama’s opponents made constant noise about those missteps, for years.
In this case, Trump has simply ignored a very recent order of the Supreme Court, urging TikTok to take the exact actions that Congress and the judiciary had just outlawed. And all the relevant public officials seem to have acquiesced, or are entirely unconcerned. (This is different from what’s happening with birthright citizenship, for example, because the Supreme Court hasn’t ruled on those other issues for decades, and the earlier cases involved very different underlying facts.)
This says something about the president’s powers, relative to the Court’s. It calls to mind those famous observations that the Court’s legitimacy depends on ingrained customs and traditions that cause Americans and their elected officials to accept and follow its rulings. And it shows that the Court’s reputation has already reached a point when a president can openly ignore its rulings and orders, with hardly any opposition or political consequence. Trump has set a precedent, and it’s hard to imagine this will end here.