The Government's Astonishing Constitutional Claims on TikTok

Published by The Lawfare Institute
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Thanks to a Freedom of Information Act (FOIA) release, we now have the letters that Attorney General Pam Bondi sent to major tech companies like Apple, Google, and Oracle regarding their continued business with TikTok. These letters provide a legal rationale (if it can be called that) for the Trump administration’s commitment not to enforce the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA), the divestment-or-ban law that the Supreme Court upheld in January. The letters make two central claims, both of which are astonishing in their breadth and implications for executive power.

First, in some of the letters, the Justice Department purports to be “irrevocably relinquishing any claims” against the companies for violating PAFACAA during the non-enforcement periods declared by President Trump. As I’ve written before, such promises of non-enforcement are on shaky legal ground and represent a risky bet for the companies relying on them. A future administration would likely not be bound by these pronouncements, regardless of the Justice Department's assertion of its "plenary authority" over PAFACAA to enter into such settlements.

But the primary, and more constitutionally audacious, argument advanced in the letters is a claim of sweeping Article II power. According to Bondi, the president determined that an “abrupt shutdown” of TikTok would “interfere with the execution of the President’s constitutional duties to take care of the national security and foreign affairs of the United States.” On this basis, the attorney general “concluded that [PAFACAA] is properly read not to infringe upon such core Presidential national security and foreign affairs powers.”

Let’s be clear: The executive branch is asserting that if a president determines that a duly enacted statute is inconvenient for the conduct of foreign affairs—and that’s assuming this is about a good-faith view of foreign policy, and not, say, the financial interests of a major campaign donor with a massive stake in TikTok’s parent company—he can simply set it aside. This interpretation effectively creates a foreign-affairs exception to the President’s duty to “take Care that the Laws be faithfully executed.”

This argument conveniently ignores that Congress has its own significant, constitutionally enumerated powers in the realm of foreign affairs. The authority to enact PAFACAA falls squarely within Congress’s power to “regulate Commerce with foreign Nations,” a core legislative function under Article I. The logic of Bondi’s letters suggests that this power exists only at the sufferance of the president. Whenever a president finds a congressional commercial regulation to be an obstacle to his foreign policy goals, he can, by this reasoning, simply ignore it. Today it’s a social media app; tomorrow it could be any number of sanctions, trade, or immigration provisions that a president unilaterally decides to ignore based on some generic assertion of foreign affairs authority.

To be sure, there are rare circumstances where the president’s exclusive Article II foreign affairs powers can overcome a contrary congressional statute. The key modern precedent is Zivotofsky v. Kerry, where the Supreme Court held that the president has the exclusive power to recognize international borders and that Congress could not, via a passport statute, force him to contradict his recognition policy regarding the disputed status of Jerusalem.

But Zivotofsky’s holding was a narrow one. The Court took pains to emphasize that the case was “confined solely to the exclusive power of the President to control recognition determinations” and did not “question the substantial powers of Congress over foreign affairs.” It certainly did not anoint the president as the “sole organ” of American foreign policy, free to disregard any law he deems inconvenient.

The letters also deploy a disingenuous constitutional avoidance argument. They claim PAFACAA is “properly read” to include an exception for the president’s core foreign affairs powers. But the canon of constitutional avoidance only applies when a statute is ambiguous, allowing a court to choose a plausible interpretation that avoids a constitutional problem. That is not the case here. PAFACAA is crystal clear. It provides a specific, narrow 90-day extension mechanism contingent on a divestment process; it cannot plausibly be read to authorize a free-floating presidential power to suspend the law for foreign policy reasons. The Justice Department isn’t interpreting PAFACAA; it’s vetoing it after the fact.

The battle over TikTok is a major rule-of-law crisis in its own right. But its greatest significance may be how starkly it illustrates this administration's imperial conception of itself.