TikTok I: Can Trump Refuse to Enforce the Law? Can He Delay Enforcing It? Can He Buy TikTok?

There has a been a lot of wrong-headed talk about what will happen and should happen with the TikTok Law, so I’ll write about it. The Tik-Tok Law says that the Chinese government, which owns TikTok, must sell it. President-Elect Trump says he will give them some time to work out a deal, and let them operate in the meantime. He also suggests that he’d like for the U.S. government to have 50% ownership.

In TikTok I, the present essay, I’ll talk about this announcement. I started off intending to write on two other things, but I’ll publish them as separate Substacks. TikTok II will be about what I think happened over this past year and what will happen next. TikTok III will be about the issue of whether TikTok can find a buyer within a week, or whether it needs 90 days at least. I really meant to write about Ukraine today, but TikTok is even more time-sensitive. And I also want to write more on the Meno Theorem, and on Tardiness as a Grave Sin, and on the Kinsey Institute, and on how the Greek word “judaos” in the book of John really means “Jews from Judea” as opposed to “Jews from Galilee”, not “Jews” or “Jewish leaders”, and on . . . Arsa longa, vita brevis.

1. Can Trump Legally Give TikTok Some Time?

The President must enforce the laws. Usually he has prosecutorial discretion: the Justice Department can’t accept every case it gets, so it has to decide which to go after and which to put aside. I heard back around 2000 that the Justice Department would not bother with any cocaine case involving less than a kilogram or any marijuana case with less than a ton.¹ It would have been improper for Justice to say, “We won’t enforce the drug laws if you only sell a little,” but it was quite proper to have guidelines for which cases to prioritize. Here, though, the TikTok Law’s wording says that the Attorney-General must investigate any violation and enforce the law. Here’s what I think is the version signed into law by President Biden:

It’s really helpful to read what the law actually says. I see no sign any commentators have done that. So let’s see what the law says Trump should do. Trump didn’t say he wasn’t going to enforce the law; he said he’d give them some extra time. An “executive order” probably isn’t the right way to do that, but he can legally and ethically give them some time very easily. In fact, he *can’t* do anything to TikTok immediately. There’s a process he has to follow. Read what the law above says.

The first step in the TikTok Law is for the Attorney-General to launch an investigation. It puts no time limit on the investigation. It could last 5 minutes, or 5 months.

Then, the Attorney-General goes to court to ask for a court order against TikTok. It can take a while to do that, too. It doesn’t have to ask for an expedited court order. Courts can take years to issue orders. The Attorney-General is not allowed to just send in the FBI and shut down the TikTok offices; it takes time, even if the Attorney-General asks a judge to go quickly using an emergency motion.

In court, the Attorney-General has two things he can ask for: civil fines, and/or an injunction, an order from the Court for TikTok to do something. The injunction would probably be for TikTok to sell itself to some Americans within a certain period of time. If TikTok disobeyed the order, there would be a civil and criminal contempt hearing and some TikTok executives would be put in jail, if they were on American soil and could be caught, jailed until TikTok was sold (possibly a life sentence), the civil contempt part, and jailed as a penalty for disobeying the court (the criminal contempt part).

That’s the law as I understand it. I might be wrong; I welcome correction. Notice that President Trump can’t shut down TikTok the day he takes office, even if he wants to. He has to go through a process, a process that takes time.

There is another angle, though: the fines. Even if it takes six months to get to the deadline for the injunction, TikTok still has to pay the fines. The judge gets to set the fines, and I have no idea how he would do so. The fine has a maximum of $5,000 per user, which with 170 million users would be about 1 trillion dollars. That’s a lot, but there’s no mininum fine. Could the judge choose anything between $1 and $1,000,000,000,000? That’s what the words say. But there is probably caselaw that somehow says what the minimum is that the judge can order the fines to be.

The fines are why TikTok needs some assurance from the Attorney-General, or the Acting Attorney-General, as to whether it will have to pay fines.² It would be fine, as far as enforcing the law, for the Attorney-General to tell TikTok he won’t ask the judge for any fines so long as TikTok divests by July 1, 2025. Remember: the Attorney-General isn’t required to ask the judge for any fines at all. He could just ask for injunctive relief. So he can certainly delay the fines. And, I think he could say in advance that he wasn’t going to ask for fines, though that is a bit sketchier. It would rely on the judge that the Attorney-General’s promise is binding. I think a judge would do that, but it’s a technical legal point. It would work out something like this:

Attorney-General: I’m asking for $1 trillion in civil penalties, and an injunction to require TikTok to divest.

TikTok: The Attorney-General could have asked for that if he’d kept his mouth shut earlier, but he told us he wouldn’t ask for any civil penalties and that’s why we didn’t divest earlier.

Judge: It would be unjust for the Attorney-General to trick TikTok that way, so he can’t ask for civil penalties, only for the injunction.

To summarize: President Trump can give TikTok a reasonable amount of extra time to divest, and can keep them safe from fines for operating during that time. He can’t given them forever without violating his oath of office, but he can give them reasonable time.

2. Trump’s Government Ownership Idea

Since I started by showing you Trump’s informal announcement, let’s think about his talk about a deal. This is much more worrisome than his talk about delaying enforcement, from a constitutional perspective, but maybe it will work out okay.

What the law says is that TikTok must be sold by the Chinese. Everybody has been assuming it would be 100% sold to American investors— maybe to an existing corporation like Microsoft that is in a related business, maybe to a corporation like Wal-Mart that is big enough to handle the acquisition but is unrelated, maybe to a new corporation financed by Musk, Gates, and Oprah. Selling to the U.S. government is different, and selling only 50% is different.

I don’t know if selling 50% would satisfy the TikTok Law. I won’t talk about that now, but the intent of the law is to remove the Chinese government from any control of TikTok, and if it remains a giant shareholder, even if a minority one, that seems dubious. A 50% share sounds crazy; 49% might possibly be okay, but they couldn’t be allowed to elected any member of the board of directors or have any more influence than a retired busdriver who owns 10 shares.

Selling to the U.S. government isn’t prohibited by the TikTok Law, but it creates its own problems and its own advantages. If the U.S. Government owns TikTok, that is socialistic. That is not to say it is bad, but there are reasons we don’t like government ownership of corporations. Governments are inefficient. TikTok will have higher costs, be less innovative, and the quality of the product will suffer. Governments are political. It would be in the President’s power to throttle his political opponents when they try to use TikTok.

On the other hand, TikTok is a natural monopoly, and it will also be used politically by whoever owns it. That, indeed, is the source of the TikTok Law: Chinese government ownership means it will be run for the benefit of the Chinese government, and run with political objectives as the foremost concern. In 2018, Twitter was run politically, to promote leftism and discourage conservatives. Then Elon Musk bought it, and changed its policy. In 2025, X is run fairly neutrally, because Musk is a centrist and because he likes free speech and because X will make more money if it is run neutrally, but Musk does promote his own Tweets and I’ve heard he bans some people he doesn’t like.³ Facebook and Google and Instagram were all leftwing in the past and they’re still leftwing, though Facebook has made noises about becoming politically neutral and not censoring conservatives any longer.

One solution to the fact that the large platforms are natural monopolies likely to censor opponents of their owners is regulation. That’s what Texas and Florida tried to do, but the courts have suppressed those state laws, saying that if Facebook, say, is not allowed to censor millions of conservative users, that is a violation of Facebook’s free speech rights, because Facebook is being compelled to allow speech it doesn’t like on its property. The Supreme Court waffled on this in NetChoice v Paxton, the case I like to call Tech Lords v. Texas. I’ve written on that, and hope to write more.⁴

A second solution to the problem of natural monopolies is government ownership. The classic example of a natural monopoly is the electricity company. Most electric companies— Duke Energy, for example— are private companies, but since they have a monopoly— Duke is the only company in my town of Bloomington, Indiana— their prices and service are regulated. But some electric companies are government-owned, such as the Los Angeles Department of Water and Power. That’s another way for the government to make sure that prices aren’t too high and service is not, for example, biased against people from a particular political party. We could use government ownership with TikTok. If Elon Musk owned TikTok, he would be free to ban any videos critical of his friend, Donald Trump. Or, President Trump could send a team of FBI agents armed with machines guns to nicely ask Elon if he’d please ban the videos, and Elon could voluntarily comply. President Biden did something like this, and the Supreme Court said it was fine, though it would have been wrong if Biden had made specific threats. If the U.S. government owned TikTok, President Donald Trump might like to ban those videos, but he wouldn’t legally be able to. A government company, unlike a private company, is not allowed to be politically biased. Victims can sue if it tries to be biased.

Thus, I have long thought myself that it would be a good thing for the government to own X, and TikTok, and Facebook. Regulation would probably be even better, but govenrment ownership would be okay. It would be inefficient, but monopolies tend to be inefficient anyway, as we saw with Twitter and how Musk could fire most of the employees without a hiccup at the same time as he introduced innovations and improved the product. So I like Trump’s idea of government ownership of TikTok.

There remains another problem, the one that creates a constitutional problem. The President enforces the TikTok Law. If at the same time, the President is making a deal to buy TikTok, there is an obvious and huge conflict of interest. The President can threaten to wipe out the value of TikTok unless it’s sold to the U.S. government at a very low price. That is unfair to China. It is illegal for the government to take people’s property without compensation. That’s the Takings Clause. The Takings Clause applies to foreigners as much as to U.S. citizens, and for good reason. We want to have freedom of property in America, even for foreigners, because if property rights are not safe, nobody will want to invest here, and because if the government can coerce foreign property owners, it can coerce them those foreigners into helping it oppress Americans too.

Trump is a dealmaker, and a good dealmaker, but he shouldn’t use the police power to bargain down the price the government pays for things. He should not even talk in that way. The Chinese government deserves a fair price for TikTok.

Footnotes

1. My source, who must remain anonymous, was a federal prosecutor. Hi, John Doe!

2. I am not sure an assurance from the President does TikTok any good. The law says the Attorney-General brings an action, not the President. The President can fire the Attorney-General, but even then I wonder if the President can bring an action personally; I think he needs to have someone in the Justice Department do it. That’s why an Executive Order may not be the appropriate way to do this. Of course, we’d expect the Attorney-General to obey the President’s wishes, but the President might be able to rightly say to TikTok,

“Oh, sorry. I told you I wouldn’t fine you, but it’s the Attorney-General who decides that stuff, and he disagrees, and I don’t want to fire him, so you’ll be fined anyway. But it’s not me making the decision.”

Administrative law professors and practitioners, any thoughts on this? I think what I am saying is consistent with the Unitary Executive, a theory with which I agree.

3. Didn’t I just say Musk likes free speech? Yes, he does, but like everybody else, he also dislikes certain people, and everybody makes tradeoffs. It is actually more dangerous to criticize a powerful person’s hairstyle than his political positions. I say this as a general statement; I don’t think that’s why Musk has banned anyone. Still, be careful if you’re thinking of saying he has a bad haircut.

4. I have a Substack on that somewhere, but by now you might as well read my Supreme Court amicus brief, where my counsel was James Bopp, who made us put in some constitutional law on top of the econ part. A political-science professor friend told me to take out all the numerical examples, so I did, but I did keep in the diagrams, which is no doubt why the Justices totally ignored my brief. I nonetheless do not regret writing it, and I hope to turn it into a law review article one of these days. Comments welcomed at erasmuse61@gmail.com.

"Brief of Amicus Curiae Eric Rasmusen in Support of Respondents in 22-555 and Petitioners in 22-277, NetChoice v. Paxton," United States Supreme Court (2024). The large social media platforms are natural monopolies and common carriers, which should be regulated to forbid discrimination on the basis of political position. Texas and Florida did this, and their laws did not violate the 1st Amendment rights of the Tech Lords: they protected the speech of the millions of users. Standard economic theory tells us that natural monopolies should be regulated, and Twitter is more like the phone company than a magazine. https://www.supremecourt.gov/DocketPDF/22/22-555/298407/20240123110046414_Rasmusen%20Amicus%20Brief%20Filing.pdf.