Trump Administration Likely Exceeded Legal Authority With TikTok Ban, Judge Rules
The federal judge who blocked the White House’s ban on TikTok downloads in the U.S. Sunday night said that the Trump administration “likely exceeded the lawful bounds” of the powers afforded to the president under the the International Emergency Economic Powers Act.
President Trump invoked the IEEPA in his executive order banning TikTok, the short-form video app owned by Chinese internet giant ByteDance, in the United States. The law is designed to let the president take emergency action to prohibit business transactions for an entity that represents “an unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.”
However, the IEEPA includes two exceptions — both of which apply to TIkTok, U.S. District Court Judge Carl Nichols of the District of Columbia wrote in his opinion, which was released Monday.
As cited by the judge, the law does not give the president authority to regulate or prohibit, directly or indirectly, “the importation or exportation of ‘information or informational materials” or “personal communication[s], which do not involve a transfer of anything of value.”
TikTok bolstered its case by comparing the app to a “news wire feed,” which is explicitly excluded from regulation by the IEEPA, Nichols wrote. The judge determined that the content exchanged by TikTok users does indeed constitute “information and informational materials.” At a minimum, the Trump administration’s ban would “‘indirectly’ ‘regulate’ the transmission of ‘informational materials’ by U.S. persons,” the judge wrote.
In addition, Trump’s order and Commerce Secretary Wilbur Ross’s prohibitions “will have the intended effect of stopping U.S. users from communicating (and thus sharing data) on TikTok,” Nichols wrote.
“To be sure, the ultimate purpose of those prohibitions is to protect the national security by preventing China from accessing that data and skewing content on TikTok,” the judge said in his opinion. “But Plaintiffs have demonstrated that they are likely to succeed on their claim that the prohibitions constitute indirect regulations of ‘personal communication[s]’ or the exchange of ‘information or informational materials.’”
Nichols also noted that the government “has provided ample evidence that China presents a significant national security threat, although the specific evidence of the threat posed by Plaintiffs, as well as whether the prohibitions are the only effective way to address that threat, remains less substantial.”
The judge also found that the TikTok ban “will inflict irreparable economic and reputational harm on Plaintiffs. This factor therefore weighs in favor of granting preliminary relief.”
The Commerce Department originally set Sept. 20 for the TikTok download ban, citing Trump’s declaration that the Chinese-controlled app represents a threat to U.S. national security. The agency delayed the deadline to Sept. 27, given Trump’s preliminary approval a week ago of owner ByteDance’s deal to transfer TikTok ownership to American firms including Oracle and Walmart.
While Nichols granted TikTok’s motion to stop the Sept. 27 download ban, the judge rejected the company’s request to halt Trump’s executive order that would effectively shut down the app Nov. 12 if the deal to sell ownership of TikTok to U.S. buyers isn’t completed by then. Nichols said the Nov. 12 prohibitions “should appropriately be the subject of separate proceedings.”