“Congress deemed it necessary to take that risk given the serious threats to national security it perceived. And because the record reflects that Congress’s decision was considered, consistent with longstanding regulatory practice and devoid of an institutional objective to suppress particular messages or ideas, we are not in a position to set it aside,” the concurring opinion said. by Justice Sri Srinivasan. .
Both the US Department of Justice and TikTok have previously requested that an expedited ruling be issued today. Since the law stands, the TikTok ban could go into effect just one day before Trump’s inauguration next month.
In reality, the app will most likely survive a few more months. A 90-day deadline extension remains on the table for the Biden administration, which would leave the matter in Trump’s hands. What is more certain to happen is that ByteDance will appeal the court decision today and take it to the Supreme Court next, which is expected to take up the case and issue its decision later next year.
Friday’s decision doesn’t surprise people who have been following the case. In oral arguments before the Court of Appeals in September, the justices appear to have already accepted the idea that the app raises a valid national security concern for the United States. The remaining question was whether a ban overcorrects for those risks and causes further harm to free speech. The judges today definitively said the answer was no.
“Courts tend to give broad latitude to the executive branch on national security issues,” says Dewardric McNeal, a former Defense Department official and now managing director of the D.C.-based consulting firm Longview Global. In fact, today’s court opinion cites “persuasive evidence demonstrating that the Act is narrowly designed to protect national security” offered by the US government.
While Congress can theoretically repeal PAFACA, it will be difficult for Trump to convince them to do so because there is a “vast majority of people on Capitol Hill who supported this law,” McNeal says.
To save TikTok, Trump could use the powers of the executive branch to his advantage. “While you can’t completely ignore the law, you can decide how much you want to focus on law enforcement and how aggressively you want to enforce it,” McNeal says.
Alan Rozenshtein, an associate professor of law at the University of Minnesota Law School, previously told WIRED that the PAFACA Act is written for the president of the United States to decide whether TikTok “is no longer controlled by a foreign adversary.” This could create an easy way for the Trump administration to allow TikTok to continue operating in the US.
To avoid generating controversy with his Republican allies in Congress, Trump could also negotiate a deal to sell TikTok to an American investor. At least two high-profile bids to buy the app have already emerged, including one from Steven Mnuchin, former US Treasury secretary, and Frank McCourt, an American real estate investor.